Councils to be forced to ignore nutrient pollution impact when taking planning decisions

Local authorities will have to ignore the effect of nutrient pollution when granting planning permission in specially protected areas, under amendments tabled yesterday by the government to address the nutrient neutrality crisis affecting housebuilding.

The amendments to the Habitats Regulations, which go further than indicated by the government’s press release on the subject yesterday, state that planning authorities “must assume” that nutrients won’t affect protected sites when making decisions, even if Natural England tells them the opposite.

The proposed watering down of the Habitats rules are likely to further enrage environmental campaigners already furious at what they perceive as a rowing back on the government’s environmental commitments.

The government’s press release suggested that it was proposing to end the duty on Natural England to advise local authorities not to approve developments in pollution-affected areas protected under the Habitats rules. This power is contained in a new Clause 159A to the Levelling Up and Regeneration Bill, tabled yesterday.

However in addition, the amendments also proposed to actively prevent planning authorities from concluding that nutrient pollution could be caused by residential development, even in the face of advice to the contrary.

Since a 2018 European Court ruling, local authorities have been unable to approve plans for new homes in areas where Natural England has advised them protected habitats are in poor condition, given they would be open to legal challenge. Natural England now has such advice in place in 74 councils across England.

Housebuilders blame the nutrient neutrality rules for holding up construction of up to 150,000 homes in the planning pipeline, with effective development moratoriums in place where the Natural England advice persists.

While housebuilders yesterday welcomed the plans, environmental groups reacted with fury even prior to the publication of these regulations, with the Wildlife Trusts accusing the government of having broken previous promises not to water down environmental regulations. Wildlife charity the RSPB described the decision as a “national scandal” while musician and rivers campaigner Feargal Sharkey said the government’s pretences on the environment had been “blown asunder”.

>>See also: Nutrient pollution: a developing problem with no solution in sight

The proposed new clause 85A of the Conservation of Habitats and Species Regulations 2017 states that: “When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential development, whether alone or in combination with other factors, will not adversely affect the relevant site”.

It adds that concerns about an adverse effect on a Habitats-protected site is not grounds for an “appropriate assessment” under the Environmental Impact Assessment regime, and further, that planning authorities must continue to assume no ill-affects from pollution “even if a finding (however described) to the contrary is made”.

This finding could be either “in the conclusions of an appropriate assessment”, or in “representations made by the appropriate nature conservation body” – which is Natural England – or “by any other person”.

Simon Ricketts, founder and partner at planning law firm Town Legal, said in a blog post that he supported the government’s “radical” move “on balance”, as “if enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed.”

However, he said the government had to answer the question: “Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit, why does this not amount to regression?

“[…] If the [government commitments to tackle pollution] are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area?”

Labour yesterday said it would support the government’s broad move to unblock the nutrients crisis, however, it is not yet known if it will support these specific clauses in Parliament.