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Following the government's proposed legislative changes to nutrient neutrality through the Levelling up and Regeneration Bill we caught up with one of our associates, Tom Beeley, who provides specialist advice on sustainable energy, building energy performance and natural capital to find out his thoughts on the changes which government believe will allow them “to go further to protect and restore our precious waterways whilst still building the much-needed homes this country needs”.
Nutrient Neutrality requirements currently affect development in 24 catchments across 74 Local Planning Authorities in England and are estimated to be holding up the development of thousands of homes nationwide.  The legislative changes are aimed at freeing up the development of homes in affected areas which have been caught in planning following the introduction of Natural England guidance on nutrient neutrality. 
Amendments introduced via the bill will seemingly remove the potentially adverse effect of nutrients in urban wastewater as a ground for refusal of a planning application. This will allow planning authorities to ignore evidence of nutrient pollution associated with new housing to grant consent and circumnavigate The Conservation of Habitats and Species Regulations 2017 from which nutrient neutrality rules stem. 
The announcement indicates that individual developments will no longer need to seek mitigation to offset their impact on water quality as they are currently. Instead, mitigation would be provided centrally by targeting reductions in nutrient pollution at source via an expansion of a Natural England (NE) nutrient mitigation scheme and other publicly funded measures alongside requirements on water companies to upgrade sewerage treatment plants. 
This change has come about largely because of house builder lobbying who highlight that sewerage discharge from new homes represents only a very small part of the pollution problem and the rules are therefore a disproportionate block to much-needed housing delivery.  They have questioned why housing development is being singled out to resolve the issue of nutrient pollution and point the finger at water companies and agriculture as far greater sources of pollution which the government should be seeking to address.  This argument seems to have found favour with the Secretary of State for Levelling Up, Housing and Communities Michael Gove, under whose remit planning and housing delivery fall with the tabled amendments seeking to redress the balance.
After a year in which the declining quality of England’s rivers and coastlines have been under constant media scrutiny, this announcement has been controversial. 
It puts what is regarded as two key government policy areas of housing delivery and the environment against one another, seemingly contradicting the government’s own environmental principles policies. The proposed amendments have drawn criticism from a wide range of environmental groups including the Office for Environmental Protection, which is a public body set up under this government to protect and improve the environment by holding the government and other public authorities to account.
Whilst the amendments have been welcomed by the development sector as a means of freeing house building in affected areas from a planning quagmire, they don’t provide an immediate solution.  It will take time for legislation to be laid and implemented, assuming of course the amendments make it through the parliamentary process. Indications are that they could be subject to scrutiny and further amendment in the House of Lords. 
It also once again muddies the policy waters with a lack of clarity about how the changes will work to deliver the necessary mitigation. Before the announcement a private sector market providing nutrient offsetting had been established in reaction to nutrient neutrality rules, which was encouraged by the government. This is providing mitigation solutions for housebuilders in many of the affected areas by engaging landowners in schemes which would reduce nutrient pollution to offset the impact of new housing.
The policy changes now proposed would remove the main source of demand for these private schemes whilst expanding a publicly funded nutrient mitigation scheme being delivered by NE. This creates uncertainty for the private market and will undermine confidence and delivery. Solutions which were being brought forward may now be reviewed given the uncertainty created with the potential to further delay solutions in some areas. 
The key question for housebuilders will be whether this policy change will unlock the development process more quickly than the current private market arrangements being developed. Many developers will no doubt wish to continue exploring private solutions until policy changes are enacted to ensure they have some form of mitigation backup in place should the amendments fail or be slow to implement.
It also raises questions about the use of public funding to deliver long-term mitigation which could otherwise be provided by the private sector. The private provision of natural capital solutions has been an area which government has been keen to promote.
Alternative solutions are put forward by those concerned with the proposed amendments. They highlight that the use of planning conditions could be used to shift where the requirement to secure mitigation sits within the planning process. This approach would see developers required to secure mitigation as a pre-commencement planning condition rather than the current arrangements which require mitigation to be secured before planning decisions are made. 
This could bring advantages over the current arrangements, speeding up the planning process and providing housing developers with greater certainty by enabling them to gain planning consent before they must acquire nutrient mitigation. This would simultaneously give greater certainty for those providing mitigation which should help to bring forward private solutions more quickly.
This alternative proposal would avoid placing the planning system in the awkward position of having to ignore evidence of pollution with existing protections retained. Nutrient mitigation would still be delivered in advance of harm as part of the development process, paid for by developers rather than from public expenditure. Whilst it is acknowledged that new housing is not the sole or even the largest source of pollution, the government has previously indicated that a polluter pays principal should apply and therefore that developers contribute to the solution.
The process of planning conditions might also more closely align with the approach being applied with Biodiversity Net Gain – a consistent approach to environmental mitigation should benefit the planning process overall. 
Key to all of this will be delivering an approach which balances the need to improve the condition of our rivers with housing delivery. Any amendment will of course need to garner the necessary support to be voted into legislation and unblock the system. It will be interesting to watch how the proposed amendments fare when the bill is debated and how any outcome is implemented. 
Farmers should also take note of the recent announcement about nutrient neutrality. The focus on water quality is bringing increased scrutiny of farming’s impact on water pollution in affected areas.  The announcement included provisions for funding improvements for slurry storage likely to be delivered by further rounds of the slurry investment scheme and funding for plant and soil nutrient management to reduce nutrient pollution. 
However, this ‘carrot’ approach may well be accompanied by more use of regulatory ‘stick’ in future with a government commitment to an increased regime of farm inspections to identify and address sources of water pollution.  Farmers in affected areas would be well advised to maintain close attention to slurry storage and nutrient application and make use of funding and support where it is available. 
Whether publicly or privately funded, nutrient mitigation requirements may also present landowners with opportunities for new income in affected areas as land on which to deliver schemes is critical for nutrient mitigation.
Read the government announcement here.