REGULAR FEATURE
Nutrient Neutrality – What is it and how is it relevant to property developers and financing
consents where an outline consent has been secured). Ongoing projects have stalled - not just due to compliance with nutrient neutrality but also because of chronic under-funding and lack of resources. How can this impasse be addressed? Solutions Natural England has published a nutrient budget calculator which has been further adapted by the affected local authorities. This calculates the total annual nitrogen load that must be mitigated by a scheme, based on assumptions such as a default occupancy rate of 2.4 people per dwelling. Developers need to submit a calculation in support of their planning application -a useful tool in determining whether a scheme is likely to be impacted by nutrient loading. Solutions implemented by developers also include on-site mitigation measures such as the retrofitting of Sustainable Urban Drainage System (Suds), the creation of treatment wetlands, package treatment plants and off-site measures, more applicable to large scale developments, such as taking land out of agricultural production by third party landowners thereby creating a credit which equates to the amount of nitrogen being produced by a site. The credit is then sold to developers to mitigate the likely nitrogen and or phosphate output. Any agricultural land must be within the same catchment area as the proposed scheme. It is important to note that local authorities have different processes and approaches to mitigation. For example, Portsmouth City Council has indicated that the credit system should only be used as a last resort measure and Havant Borough Council became the first local authority to create a mitigation scheme by gradually turning a site formerly used as a dairy farm into a nature reserve. A payment of £1,308 per 1kg of nitrogen contribution (increased
BY HUSEYIN HUSEYIN Partner, Head of Development and Planning
As part of our legal trends series, we focus once again in the interplay between the environment and development. Nutrient neutrality is said to be the reason why around 120,000 planning applications have stalled, according to the Home Builder Federation. Nutrient neutrality is the idea that the number of nitrates entering a water system can be offset by the removal of an equivalent number of nitrates. The concept arose out of a 2018 European decision (subsequently applied here ) which ruled that the release of nutrients into protected conservation areas is unlawful. The reason being that excess nutrients (like nitrogen and phosphorus) lead to the loss of habitats. It is widely held the developments have just such a polluting impact – particularly through additional sewage and waste, run-off from construction etc. Consequently, Natural England issued guidance to some local authorities stating that planning permissions should not be granted unless a development can achieve ‘nutrient neutrality’. Since March 2022 almost 74 local authorities have been affected by Natural England’s guidance. These local authorities, in taking a broad view, have applied it to the grant of every new planning consent (including reserved matters
THE LEGAL CORNER MAGAZINE | ISSUE 002 JANUARY '23 | BANKING & FINANCE SPECIAL HB 8
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