Tag: nutrient neutraility

Neutrality: Government Clambers Off The Fence

Ahead of a late but welcome announcement by the Government, there was a silly headline in The Times this week: Homes crisis ‘worsened by environmental red tape’ (18 July 2022). Yes, we are back to the topic of my 16 July 2022 blog post: nutrient/water neutrality.

It’s good that this huge issue is attracting media attention – and I’ll come on to the Government announcement in a moment – but it is disappointing to see the usual “red tape” sneer.

The problem isn’t the rules or bureaucracy: we have specific areas designated of particular ecological importance and sensitivity, the integrity of some of which is under threat because of the existing levels of nutrients draining into them, from farming (eg fertilisers, animal waste) and from homes (human waste), and the integrity of others which is under threat due to the consequences of over-abstraction of water. These situations haven’t been adequately dealt with by the water companies or government agencies, meaning that even one more home being built in these catchment areas is considered by Natural England to be unacceptable without adequate mitigation in place (which can be difficult, particularly for smaller schemes). The problem isn’t the housebuilding, it’s the pre-existing precarious state of these areas.

It is a big problem, and it has been with us for a long time now (see my previous blog posts).

The Government has been waking up to the issue. Back in March 2022, DEFRA announced some support for affected local planning authorities, Nutrient pollution: reducing the impact on protected sites  (16 March 2022). But this was little comfort to those stuck in the system.

But this week we saw more wide ranging measures announced by DEFRA and DLUHC. Of course they won’t provide an immediate solution, but they are certainly welcome. 

The package of announcements comprises

These are the main measures announced by the Secretary of State:

  • “In order to drive down pollution from all development in the relevant catchments, we will be tabling an amendment to the Levelling Up and Regeneration Bill. This will place a new statutory duty on water and sewerage companies in England to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. Water companies will be required to undertake these upgrades in a way that tackles the dominant nutrient(s) causing pollution at a protected site. We are also using feedback from the recent ‘call for evidence’ to water companies to identify where these upgrades could be accelerated and delivered sooner.”
  • Natural England is directed to establish a nutrient mitigation scheme. “Defra and DLUHC will provide funding to pump prime the scheme: this is intended to frontload investment in mitigation projects, including wetland and woodland creation. This will then be recouped through a simple payment mechanism where developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation. Natural England will accredit mitigation delivered through the Nutrient Mitigation Scheme, enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits…We will announce further details in the autumn when the scheme will launch, and in the meantime, Natural England will be in touch with local authorities and developers.”
  • “Longer term, we continue to progress proposals to reform the Habitats Regulations so that impacts on protected sites are tackled up front, focusing on what is best for bringing sites back into favourable status.”
  • “We will make clear in planning guidance that judgements on deliverability of sites should take account of strategic mitigation schemes and the accelerated timescale for the Natural England’s mitigation schemes and immediate benefits on mitigation burdens once legislation requiring water treatment upgrades comes into force. DLUHC will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework.”

Joanna Averley’s letter goes into more detail as to how the proposed new statutory duty on water companies will help:

“The majority of nutrient pollution from residential properties enters waterbodies via treated discharges from wastewater treatment works (WWTW). The performance of WWTW varies based on the limits in environmental permits issued by the Environment Agency, which in turn reflect the environmental requirements of the waterbodies to which the effluent is discharged. The performance of WWTW is therefore the central factor in the level of nutrient pollution associated with existing homes and new development. It is therefore logical that effort on reducing nutrient pollution associated with housing focusses on upgrading WWTW. The statutory obligation for upgrading WWTW, which will be introduced into the LURB, will ensure that WWTW in nutrient neutrality catchments are operating at the highest level of performance, rectifying nutrient pollution at source. This will reduce the pollution from not only new development coming forward, but also from the majority of existing dwellings in affected catchments, representing a significant decrease in overall pollution from housing.

The specific performance levels of the connected WWTW is a major variable when determining the amount of mitigation new development has to secure to achieve nutrient neutrality. Suitable mitigation measures might include constructed wetlands or land use change, which can be land intensive. Under Natural England’s Nutrient Neutrality methodology, the permit limit is used, or where there is no permit limit on nutrient discharges from WWTW, a standard precautionary figure is used (8mg/l for phosphates (P) and 27mg/l for nitrates (N)). The statutory obligation from 2030 will require WWTW to operate at the technically achievable limit (TAL); for phosphates this is 0.25mg/l and nitrates 10mg/l. This action will ameliorate nutrient pollution and significantly reduce the mitigation burden for developments.

The habitat regulations require that mitigation be secured for the lifetime of the development which Natural England consider to be 80-120 years. The obligated upgrades to WWTW required from 2030; will provide clarity from the point of the LURB measures coming into force. For developments this means that the current high level of mitigation will only be required up to the end of 2030. After 2030, the pollution levels via WWTW will be much reduced and so a lower level of mitigation will be required. This reduces the overall mitigation burden on housing developments coming forward in nutrient neutrality catchments.”

This should be welcomed (even if it is so belated and does raise questions as to whether water companies will actually be able to deliver – and at whose cost) but of course there is still the period to 2030 before these new permit limits apply and so it is important that the promised nutrient mitigation scheme is up and running as soon as possible. Housing Today have raised significant concerns on that score in their piece, Government’s nutrient mitigation scheme ‘years away’ (22 July 2022)

Finally, the ministerial statement sets out unambiguously the Government’s position as to whether the Regulations bite on reserved matters applications and applications to discharge pre-commencement conditions: “The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions.” Joanna Averley’s letter promises further planning practice guidance on this issue. 

In the meantime, there is no Planning Law Unplanned clubhouse event this week but I am speaking at a clubhouse event arranged by Iain Thomson of Bellona Advisors for 6pm on Monday 25 July 2022 on the subject of Strategic Rail Freight Interchanges, alongside writer Gareth Dennis and Intermodality’s Nick Gallop – join here. And for a taster of what we may cover, here’s Iain’s recent SRFIs blog post.  

Simon Ricketts, 23 July 2022

Personal views, et cetera 

18 July 2022 tweet

Neutrality

That word neutrality. 

I’ll turn in a moment to the Court of Appeal’s 15 July 2022 ruling on nutrient neutrality in R (Wyatt) v Fareham Borough Council and Natural England. 

But first, on political neutrality. I can’t say that there is a political party at the moment I could support. Is that neutrality? It’s certainly depressing. 

This week, in an effort not to waste energy when most of us have no voice in the selection process, I haven’t been tweeting about all the rights and wrongs of the prime ministerial candidates. One of my better decisions. However, it is frustrating to see the usual 2022 Tory comfort food being served up on a plate:

“A Labour solution to housing would concrete over the whole country and leave us with socialist homes, that are owned by the state, that we can rent on a temporary basis” (Tom Tugendhat)

Net zero = “well-meaning regulations” clogging up economic growth (Kemi Badenoch)

“low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.” (Liz Truss) – possibly a reference to the libertarian “Charter Cities” idea that seems to be gaining some traction in right wing conservative circles – Sunak and Mordaunt being other potential adherents. (For more on charter cities see for instance Ann Moody’s 6 June 2022 piece in Yorkshire Bylines, Brexit benefits: From Honduras to Hull, via Hong Kong).

Is any of this food, no doubt comforting for some, good for you? Are we even able to ask such a “woke” question? 

Deregulation is of course an ever-present theme – Back To (Planning For) The Future, or what. Of course it will end badly, with botched plans and broken promises.

Meanwhile, in the real world, the inability of the Government and its agencies to arrive at any timely solutions is still the reason why Natural England’s approach to nutrient, water and recreational impact neutrality is such a blocker to house building in so many areas of the country. Water companies are failing to meet their obligations (see the Environment Agency’s no holds barred 12 July 2022 report Water and sewerage companies in England: environmental performance report 2021), farmers rail against existing restrictions on fertiliser use, off-site mitigation schemes are slow to gain traction and local planning authorities proceed (or rather don’t proceed) in a state of extreme caution. 

I last blogged on the subject in my 26 March 2022 blog post More On That Natural England Advice.  

Since then the HBF has published two Lichfields reports:

Lichfields modelled five scenarios which estimate different levels of reduction in housebuilding as a result of the nutrients issue, as follows:

1 A 10% reduction in housebuilding;

2 A 25% reduction in housebuilding;

3 A 50% reduction in housebuilding; and,

4 The non-delivery of an estimated c.53,000-60,000 new homes across the (at that point) seven catchment areas.

By way of example:

“A 10% or 50% reduction in the number houses being delivered across the seven catchment areas would equate to a reduction in between 2,540 and 12,700 new homes being built each year. This would have the potential to result in:

1 An annual reduction of between £441.8 million and £2.2 billion economic output produced by builders, their contractors and suppliers;

2 A reduced opportunity to create or support between 8,100 and 40,560, indirect, and induced jobs per annum;

3 A loss of between £2.9 million and £14.7 million in potential Council Tax revenue per annum;

4 A loss of between £17.0 million and £84.9 million in New Homes Bonus payments each year;

5 A missed opportunity to invest between £12.0 million and £59.8 million in essential infrastructure collected from Section 106 and CIL contributions per annum; and,

6 The loss of affordable housing delivery valued at between £48.8 million and £244.2 million per annum.”

This examines whether Natural England’s assumption in its guidance to date of an average occupancy of each new home by 2.4 people is too high, leading to an over-estimate as to the likely effects arising from new development:

“Multiple strands of analysis all point to the fact that the nutrient calculators that have been applied throughout the seven catchments over-estimate significantly the likely additional population that would result from the development of new housing. This will tend to over-estimate the nutrient load associated with new development and expect levels of mitigation that may not be necessary.

By way of solution, we recommend that the nutrient calculator should be amended to adopt a more sensitive assessment of population change. This should reflect the level of households/dwellings associated with a net zero population growth scenario for which no mitigation would be required. Mitigation associated with the provision of new housing to accommodate population growth should be based on the net average household size figure; this will be lower than average household size to take account of the fact that the resident population in the existing stock will be falling going forward.”

The HBF has also continued to bang the drum for a more sensible approach to reserved matters applications and applications for discharge of pre-commencement conditions – all delayed in affected areas. The HBF’s James Stevens said this recently in a LinkedIn post:

“Based on an HBF survey of members 40% of the 38,365 homes delayed in the 42 local authorities newly affected by this issue (since 16 March 2022) are caught at reserved matters and discharge of conditions stages. It is likely that a comparable number of homes are at the same stages among the 60,000 homes delayed in the 32 local authorities initially affected by this issue (for many since 22 July 2019).”

His post included a link to Charlie Banner QC’s updated opinion dated 6 June 2022, which articulates a legal case for regulation 63 of the Conservation of Habitats Regulations not applying at these stages but I’m not aware of any authorities yet adopting that position. We await the inevitable appeal decisions. 

I referred in my 26 March 2022 blog post to Jay J’s first instance ruling in R (Wyatt) v Fareham Borough Council and Natural England, where a claimant failed to persuade the court that Natural England’s previous 2020 advice on achieving nutrient neutrality in the Solent region was, in the light of the precautionary approach, in fact not stringent enough.

The claimant secured permission to appeal to the Court of Appeal. If the court had overturned that ruling that would have put us in an even more difficult place but the court (Lindblom LJ, Singh LJ and Males LJ) dismissed the appeal on 15 July 2022. A bailii transcript is not available but barrister Conor Fegan (who acted for the claimant, assisting Greg Jones QC) has posted a link to the judgment on LinkedIn and, also on LinkedIn, David Elvin QC (who appeared for Natural England, leading Luke Wilcox – Tim Mould appeared for Fareham) has posted an excellent summary. Because it’s a hot Saturday afternoon I’m not embarking on my own summary – please read David’s!

After quite a gap we have another clubhouse Planning Law Unplanned session arranged for 6 pm on 19 July 2022. We were originally going to look at whether or not it is correct that LURB represents a “power grab” by Government, as postulated by some. But in the light of events, we will extend the remit of the discussion to a neutral (of course) evaluation of what the changes within DLUHC and the prospective change of prime minister are likely to mean more fundamentally for our planning system and any potential reform. The speakers so far include Steve Quartermain CBE and Killian Garvey but I’d love to hear your views. Join here.

Simon Ricketts, 16 July 2022

Personal views, et cetera

More On That Natural England Advice

This is a follow-on from my snappily titled blog post last week New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).

Implications of NE’s updated generic Nutrient Neutrality Methodology and updated catchment calculators referred to on page 4 of its 16 March 2022 letter

The updated methodology and calculators are appended to the letter, which advises that individual authorities consider how to transition to “the new tools and guidance”.

My blog post focused on the implications for areas not previously caught by nutrient neutrality issues but of course the guidance also creates an element of uncertainty for areas already caught, where good progress has been made towards solutions, if calculations need to be amended and given that there can be no certainty as to what transitional period (if any) each authority will allow for.

Examples of progress

A huge amount has gone into developing strategic mitigation solutions, but it is inevitably complicated – involving multiple land interests, commercial arrangements, local authority joint working, robust survey work and ecological analysis. The Solent nutrient market pilot is a great example – see this LinkedIn post by Simon Kennedy last month, strategic environmental planning officer for the Partnership for South Hampshire.

As another example, in Kent, Ashford Borough Council is progressing with a strategic mitigation solution in relation to potential effects on Stodmarsh Lakes, taking a report to cabinet on 31 March 2022.

Let’s hope that the new advice does not slow down progress in relation to these initiatives. Let’s also hope that these pioneers pave the way for a much faster roll out of solutions for the additional areas now caught.

Another dark cloud?

The Natural England advice letter also referenced last year’s High Court ruling, R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021), which is currently subject to an appeal – which the Court of Appeal will hear in the first week of April 2022. The advice should be regarded as provisional until the outcome of that case. The concern is that the case concerned a challenge to Natural England’s 2020 advice on achieving nutrient neutrality in the Solent region on the basis that the advice, in effect, was not stringent enough – see our Town Library summary of the first instance ruling prepared last year by my colleague Safiyah Islam. The court rejected the challenge but if the Court of Appeal takes a different stance then Natural England may need again to reconsider its methodology.

Reserved matters and pre-commencement conditions

One particularly unfair aspect of the way in which many local planning authorities are applying Natural England’s advice is to assert that if the necessary Conservation of Habitats Regulations assessment work was not done at planning permission stage (which will often not have been the case if the nutrient neutrality issue had not been identified by Natural England at that point) it must now be done at reserved matters stage, in the case of an outline planning permission, or at the stage of discharge of any pre-commencement condition, in the case of a full planning permission.

This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.

Local planning authorities appear to base their position on a decision of the High Court (i.e. a first instance ruling, not the Court of Appeal or Supreme Court) in R (Wingfield) v. Canterbury City Council (Lang J, 24 July 2019), but surely the case is capable of being distinguished in at least the following ways:

• The basic facts were different – a claimant was seeking to quash the outline planning permission because the LPA had failed to carry out appropriate assessment in a lawful manner. The developer and LPA had accepted there was a breach but had sought to rectify it by carrying out appropriate assessment at reserved matters stage – which the court agreed remedied the breach. This was not a case where the developer was challenging the ability of the LPA to undertake appropriate assessment at reserved matters stage or indeed to require appropriate assessment at that stage.

• Lang J relied in her reasoning on the Habitats Directive and interpretation of the Directive in rulings of the Court of Justice of the European Union. That was permissible at that time but since 1 January 2021 is no longer how the UK courts are able to approach these issues. The Habitats Regulations are now to be interpreted on their own terms without reference to the Directive. This potentially gives the UK courts the opportunity to ensure that the approach to assessment in relation to the stages of decision making allowed for in the Town and Country Planning Act 1990 are consistent with the legislative framework of the 1990 Act – i.e. issues of principle are for outline permission stage, with the outline permission setting the parameters for subsequent more detailed decision making at reserved matters stage and discharge of other conditions – but without the principle of the basic acceptability of the development being able to be re-visited at those later stages.

It should also be noted that regulation 70 of the 2017 Regulations is headed “grant of planning permission” and provides that the “assessment provisions” apply to specified categories of decision. None of these is a decision to grant reserved matters approval, or a decision to discharge a pre-commencement condition.

Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?

And lastly

Just to note that there was also a Welsh case on nitrates last week, R (National Farmers Union of England and Wales) v Welsh Ministers (Sir Wyn Williams, 23 March 2022). Welsh farmers are unhappy about the Welsh Government ending, post-Brexit, certain dispensations as to the amount of livestock manure that can be deposited on grassland. The claim, based on an asserted breach of legitimate expectation, as well as lack of rationality, failed.

This coming Tuesday 29 March at 6pm we will be focusing on all of these Natural England neutrality issues: “More Natural England Development Bans – What To Do?” – there is so much to cover with our panellists, who will include Charles Banner QC, Mary Cook, Tim Goodwin (Ecology Solutions) and Peter Home (Paris Smith). Link here.

Simon Ricketts, 26 March 2022

Personal views, et cetera