Norfolk’s Nutrient Problem

So, what are the implications of the River Wensum and parts of the Broads being added to the list?

As detailed in the Chief Planning Officer’s letter of the 16th March 2022, issued to all Local Planning Authorities affected by nutrient pollution, it means that before granting any new planning permissions in the catchment area of the affected habitat site, the decision maker must be confident that the development will not give rise to adverse effects on that habitat site, as a result of the additional nutrient load resulting from that development.

The Chief Planning Officer goes on to advise that this will have:

 “An immediate impact on planning applications and appeals in affected areas.”

The guidance issued by Natural England, indicates that the types of development affected will include all types of overnight accommodation including;

• new homes
• student accommodation
• care homes
• tourist attractions
• tourist accommodation

Business and commercial developments will not be affected, unless they would give rise to other (non-sewage) water quality implications.

Based on the information provided by Natural England and the Chief Planning Officer’s letter, our understanding is that local authorities cannot determine planning applications, including reserved matters applications, prior approvals and certificates of lawfulness, within the identified catchment areas, unless they are satisfied that there is no reasonable scientific doubt that those developments will not give rise to adverse effects resulting from the increased nutrient load.  This is a position which has been confirmed through initial discussions with planning officers at some of the local authorities affected.

To assess the impacts of new development and identify appropriate mitigation, Natural England have devised a national Nutrient Neutrality Methodology. This is intended to enable decision makers to assess and quantify mitigation requirements of a new development. Where there is no net increase in nutrient loading within the affected catchment, we understand that development can be approved.

For example, this means that all relevant developments within an affected catchment area will have to demonstrate that the nutrients (nitrogen and/or phosphorus) from wastewater generated by the development must be less than or equal to the nutrients generated by the existing land use.

If this cannot be demonstrated, mitigation will be required to achieve nutrient neutrality. This could take the form of on-site treatment of wastewater, or by offsetting an increase in nutrient loading by converting land on or offsite with woodlands or wetlands.

The intention is that the assessment of the impact of a development on nutrient loads will be included as part of the Habitat Regulations Assessment. While this sounds simple enough in theory, our view is that the position will be very different in practice.  Will the skillset and resource be available locally to enable the decision maker to be confident that there is no reasonable scientific doubt that the development will not give advice to adverse effects?

In an attempt to address this issue, the Government have announced that they will make additional funding available. We understand that Natural England have set up a series of workshops over the coming weeks to enable local authorities to better understand the issue and, not least options for mitigation.

In relation to mitigation, the Chief Planning Officer's letter advises that:

 “We recognise that in newly affected areas, it is unlikely for there to be mitigation solutions in place or readily available and so the ability for development to be made acceptable will be necessarily limited in the short term.”

The Chief Planning Officer goes onto advise that:

“As we have seen in catchments already affected by similar advice, it may take time for applicants to secure mitigation or be able to demonstrate neutrality.”

On this basis, and from speaking to fellow professionals that have dealt with nutrient neutrality in other parts of the country, we should expect delays in the determination of applications, as well as additional costs for developers, not least through the provision of suitable mitigation.  The Home Builders Federation have calculated that the delivery of 60,000 homes have been delayed across the 32 local authorities affected by nutrient neutrality requirements before the announcement of the increased list last week.

Plan making will also be affected by the change. It will be particularly interesting to understand the implications for the Greater Norwich Local Plan, which following Hearing Sessions in February and March, is at an advanced stage.

As well as the impact of delays in the determination of planning applications and appeals, nutrient neutrality raises a number of questions.

Given the significant delays experienced by other areas in the country affected by nutrient neutrality, would it not have been better to introduce some form of transitional arrangements?

We understand that local authorities had no advanced warning of the changes being introduced. Whilst we fully appreciate the need to protect habitat sites, given the implications of the changes and the period of uncertainty it creates for development in large parts of Norfolk, surely it would have been better to have a period of time to allow councils, developers, and consultants to: understand the extent of the issue; identify best practice; ensure adequate resource is in place; undertake the necessary training to ensure Councils can be confident in their decision making, and; critically, allow a co-ordinated programme of mitigation to be identified.

It seems inevitable that there will be a delay in delivery of housing in the parts of Norfolk affected by Natural England's expanded list. The impacts of this on both the Housing Delivery Test and 5 Year Housing Land Supply will need to be closely monitored. If these targets are adversely affected, it seems likely that developers will focus their attention on those settlements in Norfolk that are outside the identified catchment area of the Habitat Sites, given the certainty in relation to the decision making process they provide and their need to continue to deliver housing.

There is clearly a lot more guidance required on the subject, however, we hope that all parties affected by the changes introduced by Natural England will be able to quickly adapt, enabling planning applications to be determined and development to progress without significant delay.