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Oliver Bussell looks at how nutrient pollution is affecting planning and how the government has responded.

By Oliver Bussell, Partner

Nutrient pollution is an increasingly pressing issue for many freshwater habitats. In total, Natural England has now advised 62 local planning authorities that, where new development would have an adverse impact on a protected site, permission should be refused, unless the applicant can demonstrate nutrient neutrality. Government tried - and has now failed – to remove that obstacle to allow more housing development.

The extra cost of designing and building systems to dilute the nutrient load from a development is substantial. A developer must either provide acreage for new wetlands or purchase nutrient ‘credits’ for provision of the same, together with other development on a council-sponsored site. The cost of that is often excessive - so development is stalled.

But developers point to farmers as the real culprits through their widespread use of industrial fertilisers and pesticides, as well as emissions from existing wastewater treatment plants.

In a late announcement at the end of August (blaming what it rather curiously called ‘defective EU laws’) Government tried to make things easier for housebuilders. Changes to the Levelling Up and Regeneration Bill would direct local planning authorities to ‘assume that nutrients in waste water from proposed developments will not adversely affect habitats sites’. That proposal was rejected in the House of Lords on 13 September and, because it was proposed so late, it cannot be reintroduced in the Commons.

How this default assumption of ‘no adverse effect’ could be justified was not made clear. But it points to a wider conflict between developers and the public in the housing debate.

The planning system in England focuses on mitigating harms from development – which it does via planning conditions and section 106 agreements. Looking at those harms in a wider context has some logic to it. But simply directing decision-makers to ignore them avoids the underlying problem that the system is overloaded and getting worse.

Providing relief to developers might be better achieved by tackling the sources of the existing harms, so that the problems caused by new housing could be more easily mitigated within the existing development control framework. That’s a less politically divisive solution to this aspect of our housing crisis – but perhaps a more sustainable one.

If you would like to discuss this further (or any issues with planning law), please do not hesitate to contact Oliver Bussell on email: or tel: 01892 515022.

This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.

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September 1, 2023
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