Nutrient Neutrality: Michael Gove’s proposed amendments to the Levelling Up and Regeneration Bill and the implications for developers

Discussions of “nutrient neutrality” have been all over the media, following Michael Gove’s recent announcement that further proposed amendments were being inserted into the Levelling Up and Regeneration Bill (LURB) to help kick start housing development in areas of the country suffering from nutrient pollution.

The new proposed amendments to the Levelling Up and Regeneration Bill seek to change the way that Local Planning Authorities (LPAs) approach the Habitat Regulations Assessments (HRAs) required when determining planning applications with potential effects on European designated sites.LPAs will still have to carry out HRAs, but the amendments tell LPAs not to determine a HRA negatively on wastewater nutrient grounds, even if the LPA has evidence, or Natural England or other consultees/objectors advise, that wastewater-derived nutrients will or could have an adverse effect on the integrity of a European site.

The key points for developers to be aware of are as follows:

1. Whilst this is good news for housing developers, please note that nothing has changed in the law as yet! So do not immediately assume that your nutrient problems have gone away. The proposed amendments to the Levelling Up and Regeneration Bill have to be debated by the House of Lords and the House of Commons before we will know if they “make it” into the final Levelling Up and Regeneration Act.
2. It is likely that the House of Lords will fight these amendments hard as there is a legitimate concern that they amount to a regression in environmental standards. Whilst it is correct that the Bill is imposing obligations on sewerage undertakers to improve nutrient standards of their water treatment plant discharges, these obligations will not take effect until 2030.
3. If the proposed amendments are included in the final Levelling Up and Regeneration Act, we do not yet know when the Act will receive Royal Assent or when the provisions will then come into force. If the Act is adopted then the provisions might come into force quite soon, possibly as early as the start of 2024, but there is no certainty in this regard.
4. The proposed amendments do not attempt to remove the requirement for developers to deliver “water neutrality” to benefit European sites (e.g. in the Arun Valley in West Sussex).
5. As always in these situations there are also a number of unknowns which need further clarification, such as the following:
   1.  The relaxation of the LPA’s HRA duty promoted by the proposed amendments only relate to urban wastewater-derived nutrients. Some developers’ nutrient budget calculations may derive from other sources (e.g. surface water, not urban wastewater) and hence the proposed amendments may not remove the entire problem for developers.
   2. The proposed amendments only apply to the HRAs undertaken by LPAs in relation to impacts on European sites. All land-based European sites in England are also Sites of Special Scientific Interest, that do not have the same strict legal protection as European sites. However, they do have strong policy protection under the NPPF and legislation also requires a mandatory consultation process with Natural England when a LPA is proposing to grant a planning permission with negative effects on a SSSI. Whilst the proposed amendments tell LPAs to relax the way they approach HRAs for European sites, the amendments say nothing about SSSIs. Natural England said last year that over 89 per cent of SSSIs are predicted to exceed critical nitrogen deposition thresholds. The Government has made no announcement as yet that it intends to alter the NPPF for SSSIs, to mirror the approach to nutrients in the LURB. So even if LPAs can ignore wastewater-derived nutrient for the purpose of their HRAs, they may not be willing to ignore the NPPF policy protection afforded to SSSIs. It is therefore possible that, even if the proposed amendments are adopted, LPAs will still request nutrient budgets and nutrient credits to secure SSSI protection against nutrient pollution, since this would be a material consideration in the planning determination.

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If you have any questions about how to deal with existing planning permissions requiring compliance with nutrient neutrality conditions or planning applications which are pending and caught up in nutrient neutrality delays, then please do get in touch with Penny Simpson or Richard Broadbent in the first instance.

See also our previous posts on this topic:

• Nutrient Neutrality: Our ideas to solve the Habitats Regulations Assessment Nutrient Neutrality Crisis
• Nutrient Neutrality: the C G Fry & Son Ltd Case