Nutrient neutrality and water pollution: what next?

Background

Guidance issued by Natural England aimed at preventing the discharge of nutrients from new developments is creating significant issues in the residential development sector, with the Home Builders Federation estimating in May 2022 that up to 120,000 new homes have now been delayed as a result, the majority of which are in the South East of England.

Natural England guidance requires new residential developments in affected areas to show that they will be “nutrient neutral” before planning permission can be granted. This requirement has been imposed due to the already existing nutrient imbalances in the relevant areas (such as Norfolk and the Solent), arising as a result of a high concentration of farmland and associated fertiliser use, and/or sewage waste treatment works either suffering from lack of upgrades or water companies chemical dosing allowances, which can result in eutrophication, ultimately causing large algal blooms and substantial ecological degradation in affected water bodies.

The concerns about nutrient imbalance are also exacerbated by the large increase seen in raw sewage discharges, leading to wider concerns surrounding water pollution and the adequacy of the UK’s waste water infrastructure. 

Recent developments

On 22 July 2022, the Government set out plans aimed at reducing water and nutrient pollution throughout the UK as well as supporting sustainable new housing developments. The plans are centred around three key components: practical support, financial support, and improving the applicable legislative framework.

In addition to this, on 26 August 2022 the “Storm Overflows Discharge Reduction Plan” was announced by the Government. It revolves around a large capital investment programme to tackle the huge increase in sewage discharges that has occurred over the last six years.

Practical support

Natural England is expected to issue tools and guidance to provide greater certainty for developers and local planning authorities around nutrient neutrality requirements. One example is a catchment-specific calculator, which will facilitate the precise calculation of how much nutrient mitigation is required within a given catchment area.

The Government also plans to introduce a nutrient trading scheme, which will operate in a manner akin to carbon offsetting markets where nutrient allowances above a certain cap can be traded to help a development achieve neutrality. The nutrient trading scheme is currently being piloted in wetlands and woodlands in the Solent and Somerset, and key learnings from this pilot will be used to guide the market’s onward development. Natural England will also issue nutrient certificates that can be used for planning applications in areas covered by nutrient neutrality restrictions. It’s hoped that this scheme will assist developers in meeting nutrient neutrality requirements imposed by Natural England, and enable developers and local planning authorities to work together to enable residential developments in those areas covered by the requirements. 

Improving the legislative framework

Further legal requirements will also be imposed to help reduce the level of nutrients at source. The Government has already outlined its commitment to reviewing the assessment process contained in the Conservation of Habitats and Species Regulations 2017 to make this process more accessible to users. The Environment Act 2021 will also serve as a key legal tool allowing the Government to create binding long-term targets in achieving nutrient neutrality in the water environment from agriculture and wastewater. 

Financial support

The Government will work with water companies to ensure that additional funding to reduce nutrient pollution is provided. An additional £24.5 million has reportedly been put forward by various water companies to assist with achieving nutrient neutrality in certain areas across the UK, and the Department for Environment, Food and Rural Affairs will also provide financial assistance.

Additional actions

The plans also include the imposition of a legal duty on water companies in England, requiring them to upgrade their wastewater treatment works within areas imposing nutrient neutrality requirements by 2030.

As outlined above. water pollution is a topic currently under intense media scrutiny, with water companies being put under increasing pressure specifically in respect of how they treat and discharge raw sewage. New data suggests that water companies have pumped raw sewage into Britain's seas and rivers for more than nine million hours since 2016, which is said to constitute an increase of 2,553% between 2016 and 2021.

The “Storm Overflows Discharge Reduction Plan”, announced by the Government on 26 August 2022, will require water companies to commit to £56 billion in capital investment over the next 25 years in an effort to tackle storm sewage discharges. This will entail reducing the level of discharges, increasing the operational capacity of the sewage system, and treating sewage before it is discharged, all in an effort to protect public health and prevent pollution.

Further developments

These plans and the nutrient neutrality regime generally are, however, currently set against the background of the recent publication of the EU Law (Revocation and Reform) Bill which, as drafted, would revoke a large amount of retained EU law at the end of 2023, including regulations that currently protect habitats and wildlife from destruction. It therefore remains to be seen if the Government will remain committed to keeping and developing the protections and safeguards that are currently in place. We will provide further updates as the Bill makes its passage through Parliament.

We will be monitoring developments over the coming months. If you have any questions or would like any further information about how these issues may impact development, please get in touch with the Environment, Safety & Planning team.