Elliot Taylor, Partner and Farm Business Consultant looks at the implications for future development and rural land use following the publication of new advice by Natural England relating to nutrient pollution and the requirement of some development sites to demonstrate ‘Nutrient Neutrality’ before planning consent is approved.

LANDMARK LEGISLATION

The European Court of Justice landmark ruling known as the Dutch Nitrogen Case has forced Natural England to provide new advice to Local Planning Authorities (LPA) on the risks associated with land use change from development in nutrient vulnerable areas.  This new guidance has caused delays for many planning applications across the country.  It is thought that the development of more than 100,000 new homes in England have been delayed on the back of this new legislation.  42 local authorities have now been told by Natural England that they must ensure that new homes are now nutrient neutral.

This can be an extremely complex issue for developers, however if a development is in an area that demands nutrient neutrality the developer must demonstrate that all surface water runoff and wastewater will be less or equal to the nutrients generated from the existing land use.

WHY IS ACHIEVING NUTRIENT NEUTRALITY IMPORTANT? 

Increased levels of nutrients like nitrogen and phosphorus can increase the growth of certain plants in freshwater habitats and estuaries causing harm to plant species and wildlife.  Eutrophication, the excessive growth of algae from increased levels of nitrogen and phosphate is becoming a growing problem for many freshwater habitats across the country.  The sources of these nutrients are often specific to a particular geographic location and can include discharges from sewage treatment, domestic septic tanks, and outputs or run-off from farming and industrial activities. 

When a planning application is assessed by the LPA they must now consider if the proposal will have an adverse effect on the local habitat and its biodiversity.  If harm from nutrient pollution cannot be ruled out, planning permission should be refused unless mitigation to reduce the impact to acceptable levels is put in place.  Types of mitigation might include changes to the current use of land to mitigate the future nutrient impact or load.  Certain uses, such as the creation of woodland or establishing permanent grassland can provide lower nutrient loads as well as offering additional benefits to the wider environment and increased levels of biodiversity.

WHAT IS THE PROCESS TO EFFECTIVELY DEMONSTRATE NUTRIENT NEUTRALITY? 

Firstly, Natural England will need to sign off a Habitats Regulation Assessment (HRA) carried out by the LPA.  A HRA has several stages of assessment which must be undertaken in accordance with the Conservation of Habitats and Species Regulations 2019 to determine if a development may affect protected habitat sites and result in ‘Likely Significant Effects’ on those sites.  Each proposed development will be subject to this process.  For larger developments, it's likely that offsite mitigation will be required by changing current land use.  Establishing woodland or maintaining fallow land can offer good levels of mitigation, however these are not the only options available to help reduce nutrient pollution.  Once a suitable mitigation method is found it will need to be assessed under the HRA rules and then subsequently passed by Natural England.  Early engagement with Natural England is key to this process as well as working closely with the LPA from the outset.

FINDING SOLUTIONS

It is important to identify effective solutions quickly whether through appropriate mitigation, or as some Local Authority areas are already adopting, the purchase of nutrient credits by developers to offset the future impact.  Fully understanding the current and future land use and the levels of nutrients discharged into the catchment area is a key component to successful mitigation.  Successfully calculating the net nutrient burden by considering all variables in achieving Nutrient Neutrality specific to the unique geographic location of the development is a vital part of the process in finding a solution.

Nutrient budgeting is an important part of this exercise.  The process of determining the net change in nutrient loading as a result of a new development site is delivered from calculating the ‘nutrient equation’.  This equation calculates the level of nutrient loading from additional wastewater and from the future land use whilst removing the loading from the current land use.  To ensure the final figure is robust a buffer is applied to make sure the net change is suitably precautionary.

AN EXAMPLE OF ACHIEVING NUTRIENT NEUTRALITY

If we consider a hypothetical example, specifically looking at the annual nitrogen load that requires mitigation following a development of 100 dwellings on a 5ha site that is currently used in agriculture for cereal production.  In these circumstances the total annual nitrogen load to mitigate the nutrient impact from this development would be in the region of 300 kg Total Nitrogen per year.  It is important to note however that the total nitrogen load is dependent upon the particular geographic catchment area and the method wastewater is treated.   

In this example the developer would have two options to achieve Nutrient Neutrality either through onsite mitigation or from offsite mitigation.  Although onsite mitigation is possible by utilising areas of open space within the development boundary or through upgrading sewage treatment systems its often seen as impractical for developers to achieve a successful outcome.  Offsite mitigation is likely to be the most popular option for developers, whether through purchasing nutrient credits from a third party as referred to earlier, or by changing the land use on land outside the development boundary within the appropriate river catchment area.   

To successfully mitigate the yearly nitrogen load in the example above, an area of new woodland could be established on land outside the development boundary that, in this example, is currently used for cereal production.  In the example above, the area of newly created woodland required to achieve neutrality would be in the region of 17ha. 

MITIGATION

There are several types of offsite mitigation to consider when taking land out of high nitrogen use.  Permanent land use change will be the most effective, where agricultural land with higher nitrogen loading is converted to a different use with lower nitrogen loading for the long-term.  Woodland planting, as mentioned above, is one good alternative however establishing wetlands or maintaining fallow land could also offer significant benefits.  It is also possible to reduce the yearly nitrogen load by changing farming practices.  For example, intensive enterprises such as pig or poultry production have a much greater yearly nitrogen load than grazing cattle or sheep.  Although this could be an option to consider it is important to be cautious as it would be difficult to guarantee a long-term solution that satisfies the HRA and Natural England especially as mitigation measures must be in place for the duration of the development, which is considered generally as 80 to 125 years.

THE BENEFITS

Taking agricultural land out of production to ensure that a new development does not increase the levels of nutrients in watercourses will also offer considerable benefits to farmers and landowners.  Offsetting schemes that allow developers to go ahead with their projects will also provide income to farmers and landowners that provide the land to offset against for the long-term.  It is also likely that areas taken out of production and used to offset nutrient loading will also be available to enter into other environmental agreements referred to as ‘scheme stacking’.  Scheme stacking is when various overlapping ecosystem services produced on a single piece of land are measured separately and therefore can offer multiple economic benefits to the farmer or landowner.

HOW THE GEORGE F. WHITE TEAM CAN HELP

At George F. White our team of Rural consultants and Planning experts work closely together with landowners, developers, Natural England, and LPA to find solutions surrounding Nutrient Neutrality.  Our team of dedicated specialists can assess if nutrient loading will be an issue for a proposed development and establish a strategy for successful mitigation.  We can also assess the economic benefits available for farmers and landowners from alternative land use and agreeing to provide areas for offsetting.  The team at George F. White provides a holistic approach making sure development opportunities are unlocked and progressed as quickly as possible whilst maximising values for all concerned.   

Key Contacts: 

Elliot Taylor | elliottaylor@georgefwhite.co.uk

Tim Michie | timmichie@georgefwhite.co.uk