Navigating Nitrate Neutrality: A Crucial Factor in Planning and Development

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What is nitrate neutrality?

Nitrates are produced by various methods, including agricultural discharges, wastewater treatment discharges, and development and construction on land, which disturbs the soil. 

When nitrates are released and discharged into neighbouring water, a process called eutrophication occurs, which causes a mat of algae to form in the water, which consequently takes out all oxygen in the water and sediments and, in turn, eradicates aquatic species.

The mat of algae then also prevents birds from feeding on the water.

Eutrophication can also result in the release of toxins that are harmful to wildlife, livestock and people. 

As a result, in 2019, Natural England imposed a requirement that all developments in areas with significant river pollution must be nitrate-neutral, meaning that developments should not result in the release or discharge of nitrates into nearby waters.  

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What is nitrate neutrality

What issues do nitrates provide?

The requirement for nitrate neutrality is underpinned by the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), which protect sites in England that are important for nature or for protecting threatened habitats or species.

The Habitats Regulations require bodies such as local authorities to assess the environmental impact of proposed development on the protected sites. 

However, there is an argument by many in the development sector that new housing developments are not to blame for the large levels of nitrate released into the water.

The developers argue that it is, in fact, water companies themselves discharging raw sewage and agricultural run-off, which are the biggest contributors to nitrates, into waters, which causes a lot of frustration within the development sector.

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What issues do nitrates provide

How do nitrates affect planning and development at the moment?

The main impact on planning and development is, therefore, the delays that can be caused whilst waiting for a local authority to approve or implement any mitigation measures.

A developer cannot start building a new development without the required planning permission, and it cannot receive this permission without first approval from the local authority.

The local authority cannot grant the approval if the developer cannot show that the development is nitrate-neutral. 

For a local authority to assess whether a proposed development will have a ‘significant effect’ on a protected habitat site, it must complete the following steps:

  1. Screening  - Screening means a local authority must identify whether a proposed development might have a significant effect on a protected habitat site. If the local authority decides it will, then they must carry out an ‘appropriate assessment’.
  2. Appropriate assessment - The local authority must assess the proposed development against Natural England’s conservation objectives to identify the impact of such development. 
  3. Consultation of Natural England  - The local authority must then discuss the proposed development with Natural England and must have regard to any representations made by Natural England when making their decision on whether to grant consent to the proposed development.
  4. The decision of whether to grant consent - A proposed development can only be approved if it will not adversely affect the integrity of a protected habitat site. Mitigation measures are available if there are any potential adverse effects that cannot be avoided. 

How do nitrates affect planning and development at the moment

If no such measures are available, then the proposed development cannot be approved.

The only case in which it can be otherwise approved is if there are no alternative solutions and the local authority believes there are ‘imperative reasons of overriding public interest’ for the proposed development. 

According to the Home Builders Federation, in June 2023, new estimates suggested that more than 145,000 water and energy-efficient new homes had been blocked across 74 local authority areas. These figures suggest that the restrictions are nationwide and causing issues for developers nationally.

In addition to the physical impact of delays to development, there is also the economic impact.

If a developer cannot build new commercial properties, then its employees have little to no work, and the positive financial impact of a new housing development on the local community is lost. 

To be able to continue building, a developer must show nitrate neutrality, and the only method of doing this is to follow one of the mitigation schemes.

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What can be done about nitrates?

There are only a few mitigation schemes available to developers to reach nitrate neutrality and enable the progress of their developments:

1. Natural England’s Nutrient Mitigation Scheme 

There is a £30 million investment from Defra and DLUHC to create nutrient mitigation in protected sites rapidly.

An example of mitigation is by creating new wetlands to intercept nutrients before they reach the already polluted waters. 

This scheme will also offer developers the opportunity to purchase credits and subsequently speed up the nitrate neutrality process.

A developer can purchase these credits and discharge their obligations under the Habitat Regulations. 

This scheme will also work with existing mitigation schemes, such as local authority-led schemes or on-site mitigation solutions, to improve and develop these mitigation options.

2. On-site mitigation measures 

There are options to implement mitigation measures on the development site, for example:

  • Creation or restoration of new semi-natural habitats, e.g. wetlands, woodlands, grasslands
  • Treatment of wetlands, e.g. for diverted river water
  • Retrofitting sustainable urban drainage systems into existing developments 
  • Replacing existing but inefficient septic tanks and Package Treatment Plants (PTPs) with improved PTPs
  • Provision of new wastewater treatment facilities on new developments and managed by an OFWAT-appointed statutory sewage undertaker.

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What can be done about nitrates

Prioritising nitrate neutrality

Nitrate neutrality issues are becoming increasingly central to the discourse surrounding sustainable planning and development.

Integrating nitrate mitigation measures into our planning processes is essential as we navigate the challenges posed by environmental degradation and water pollution.

Whether in agriculture, urban development, or infrastructure projects, a concerted effort is required to strike a balance between human activities and environmental preservation.

By addressing nitrate neutrality issues head-on, we can pave the way for a more sustainable and resilient future.

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Prioritising nitrate neutrality

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If you have any queries regarding nitrate neutrality, please contact our Agriculture or Commercial Property Team on:

01619414000