Nutrient Neutrality Update Special with James Stevens, Director for Cities at the HBF (S10 E6)

Episode Resources and Slide Transcripts

Dr Ashley Bowes Article on CAPX – Is the Government backtracking on environmental protection?

Slide 1

In August 2020 Natural England wrote to authorities in Somerset with regard to Somerset Levels and Moors Ramsar advising “Additional residential units within the catchment are likely to add phosphate to the designated site via the wastewater treatment effluent, thus contributing to the existing unfavourable condition and further preventing the site in achieving its conservation objectives. Natural England therefore advises that your authority carry out an appropriate assessment of planning applications that will result in a net increase in population served by a wastewater system, including new homes, student and tourist accommodation.” The appropriate assessment tests stem from Reg 63 of the Conservation of Habitats Regulation 2017 which is derived from Article 6(3) of the Habitat Directive. The latest NE guidance to all LPAs can be found here Nutrient Neutrality and Mitigation: A summary guide and frequently asked questions – NE776 (naturalengland.org.uk)

Slide 2

The recent case of CG Fry tested whether this advice properly applied to the discharge of conditions following the dismissal of a section 78 appeal. CB KC acted for the unsuccessful developer, and we discussed this unsuccessful challenge on a recent episode. You can find that on our website Discussing the Reforms to National Planning Policy Report with Clive Betts MP (S10 E5) – HWGPNFY (havewegotplanningnewsforyou.com) along with the case itself C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities & Anor [2023] EWHC 1622 (Admin) (30 June 2023) (bailii.org). The upshot of this ruling is that Art 6(3) of the Habitats Directive still applies notwithstanding the EU Withdrawal Act 2018.

Slide 3

Following Michael Gove’s press statement, 100,000 more homes to be built via reform of defective EU laws  (29 August 2023), the latest tranche of tabled amendments (https://bills-api.parliament.uk/api/v1/Publications/52407/Documents/3872/Download) to the Levelling-up and Regeneration Bill have now been published, which include a number of amendments to the Conservation of Habitats Regulations.

Slide 4

The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:

“(2) When making the decision, the competent authority must assume that nutrients in urban wastewater from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.

(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban wastewater, whether alone or in combination with other factors, is not a ground for the competent authority to determine that –

(a) an appropriate assessment is required by regulation 77(6), or

(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”  

Slide 5

Additionally, a package of additional measures is proposed that includes amongst others measures:

• An additional £140 million in funding for Natural England’s Nutrient Mitigation Scheme, and a promise that it will both be expanded and evolve with a view to ensuring “it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030”.
  
• Committing to further work on developing Protected Sites Strategies in the catchments most impacted by nutrient neutrality and with the most acute housing pressures. 
  
• a further commitment to the provisions that are already in the LURB which require water companies to upgrade wastewater treatment works that impact areas affected by nutrient neutrality by 2030.