4th September 2023
Developers are expected to face fewer environmental restrictions around delivering new homes across England following a proposed change to national legislation around nutrient neutrality.
In an attempt to unlock an estimated 100,000 new homes held up by “defective” EU laws that still apply post-Brexit, the government has introduced amendments to the Levelling Up and Regeneration Bill which could see work on the new homes within months.
Many important and sensitive habitats are considered to be in unfavourable condition due to pollution from excess nutrients – predominantly nitrates and phosphates - often considered to be the result of nearby sewage works or intensive agricultural activities. This can raise levels of nutrients like phosphorus and nitrogen, which can speed up the growth of algae in water, harmful to local wildlife and water quality.
Presently, under the Habitats Regulations, developers wanting to build houses nearby certain protected sites are required to demonstrate that the development is ‘nutrient neutral’– so the impacts of their development will not harm a protected site.
For many developers, nutrient neutrality has become a barrier to delivering new homes in rural areas due to the difficulty developers often face in mitigating the impact on-site, with opportunities for farmers and rural landowners in utilising their land for schemes to provide off-site mitigation.
By building houses or carrying out other development in the catchment areas of vulnerable wetland habitats, the concentration of nitrates and phosphates in the local water is almost inevitably going to rise. While the government acknowledges that nutrients entering rivers is “a real problem”, it also claims the impact is “very small”.
To address this, the government has announced its intention to double the investment to Natural England’s Nutrient Mitigation Scheme to £280million, with the national body set to work alongside local authorities and the private sector in securing the long-term health and resilience of water bodies. The government has also pledged to work with housebuilders to ensure fair contributions to the scheme are made for larger developments.
Further to this, the announcement proposes at least 4,000 inspections will take place on farms each year to ensure nutrient sources are minimising water pollution, as well as a further £25million investment to support innovation that helps farmers manage plan and soil nutrients.
The announcement will be positive news for both housebuilders and landowners, who are respectively seeing restrictions to their activities reduced and an increase in available funding to support their environmental endeavours.
The move has also been welcomed by a number of local authorities, including those who have felt the pressures of new home delivery, but there will no doubt be others with a more environmentally-focused stance who will see the softening of position on policy as a step backwards in efforts to protect the environment.
This position is also shared by government watchdog the Office for Environmental Protection (OEP), who said the proposed changes would “reduce the level of environmental protection provided for in law and amount to a regression”. In response, Environment Secretary Thérèse Coffey published a letter to OEP chair Dame Glenys Stacey that she stood by the government’s previous pledge that it
would not weaken its commitment to the environment and that its “package of measures will in fact improve the environment”.
Also among those environmental charity coalition Wildlife and Countryside Link, whose chief executive Dr Richard Benwell said the “assumption that alternative approaches will work is unfounded” and that the “deregulatory approach” being taken by the government is reliant on “industry good-will instead of law”.
The amendments to the Levelling Up and Regeneration Bill have now been tabled as the wider Bill continues its progression through Parliament, currently sitting with the House of Lords before being considered for Royal Assent.
With the national position on nutrient neutrality continuing to evolve, both housebuilders and landlords should continue to stay on top of the latest updates and should ensure they are receiving robust legal advice on how best to take advantage of the opportunities and restrictions being presented to them.
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please do get in touch.