The Spring Budget will do little to resolve the nutrient neutrality issue, says Lawrence Turner, director at planning consultancy Boyer
Three months ago, I was invited to No10 to discuss the issue of nutrient neutrality, as part of the government’s intention to unblock the new homes which have been stalled as a result.
The vexing subject stems from a 2018 landmark ruling by the European Court of Justice, in two joined cases related to the EU Habitats Regulations Directive, known together as the “Dutch case” (C-293/17 and C-294/17).
The ruling led to Natural England directing local planning authorities (LPAs) not to approve developments that would add to phosphate/nitrate pollution in watercourses. When, in March last year, this advice was expanded to a total of 74 LPAs, the Home Builders Federation found that an estimated 100,000 homes were put on hold. The impact includes delays to Local Plan allocations, outline applications, reserved matters and discharge of planning conditions.
We have seen the ramification in our own work very recently. Boyer is advising Taylor Wimpey and Vistry at Orchard Grove, Taunton. The site has outline planning permission for 2,000 homes on 300 acres but future consents, due to local efforts to mitigate phosphates, are reliant on the developers identifying and implementing a longer-term strategic solution. To date, we have addressed this by fallowing roughly three-quarters of the site to deliver the first 500 homes, but in the absence of existing ‘solutions’, future housing delivery will require some form of offsite mitigation.
Spring Budget won’t fix the problem
The Spring Budget announced the provision of some cash to LPAs to supersize their credit schemes. But unfortunately, this won’t fix the problem now. All the problems that exist with LPA credit schemes are simply too great for LPAs to solve.
For example, it has been suggested that LPAs can provide this mitigation themselves through credit schemes – where an LPA enters the market, buys some land (in the right place and from a willing seller) to provide a wetland or woodland and then sells the resulting nutrient credits to developers. On paper, this works. In practice, it does not.
It doesn’t work because LPAs can’t buy enough land in the right places; and where they can, the mitigation schemes deliver too few credits. It also takes a long time to establish the mitigation – and a long wait for developers. It leaves LPAs with the quandary of who should get the limited number of credits available – allocated land, SMEs, brownfield development etc.
Furthermore, achieving this through offsetting, such as creating wetlands, woodlands and fallow habitats, rewilding and SUDSs, results in the removal of significant swathes of viable agricultural land from production. And if it is taken into account by the planning process, homes can receive planning consent and be built – but can’t be occupied until the offsetting is in place.
Unlocking the planning system
There are just two ways in which the government can unlock the 120,000 homes that are stuck in the planning system.
The first is to ditch the nutrient neutrality rules, as Liz Truss pledged to do.
The second is to provide sensible and proportionate guidance to LPAs on the interpretation of Habitat Regulations. That residential applications for Reserved Matters and Planning Condition Discharges should not be subject to reassessment where a Habitat Regulations Assessment (HRA) has already been undertaken at the outline planning stage. This would unlock immediately a significant number of homes from the planning system to help young people get on the housing ladder and deal with the housing crisis that is engulfing the UK.
A legal duty on water companies is needed
Other solutions include a legal duty on water companies (announced in July last year) to upgrade wastewater treatment works in nutrient neutrality areas. The issue here is the timing: water companies operate on a five-yearly asset management plan (AMP). The current AMP is 2020-2025, so allocating the investment for this change will not take place until the 2025-30 AMP. Some discussion has considered the government funding the necessary structural changes, but this seems highly unlikely following the privatisation of the water industry.
In the absence of any significant action, such as the two solutions described above, the government will fail to deliver on its key priorities of levelling up through regenerating large-scale sites in the Midlands and the North, resolving the housing crisis and, in doing so, boosting the economy.
Lawrence Turner
Director Boyer
Tel: +44 (0)117 428 7970
bristol@boyerplanning.co.uk
