Nutrient Neutrality and Habitat Regulations (HRA)….a way forward…..?

by Jo Hanslip

On 21st July, Chief Planning Officer, Joanna Averley, wrote to Local Planning Authorities (letter attached) following George Eustice’s recent Written Ministerial Statement on 20th July regarding Nutrient Neutrality and the Habitat Regulations.


Improving Water Quality And Tackling Nutrient Pollution

In the Ministerial Statement, Eustice indicated that:

Building on our initial package of support announced in March 2022, I will issue a ministerial direction to support Natural England to establish a nutrient mitigation scheme.”

He also indicates that with regards to having sufficient and deliverable housing land supply,

“We will make clear in planning guidance that judgments on deliverability of sites should take account of strategic mitigation schemes and the accelerated timescale for the Natural England’s mitigation schemes and immediate benefits on mitigation burdens once legislation requiring water treatment upgrades comes into force. DLUHC will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the national planning policy framework.”

In her letter, Averley confirms that the Levelling Up and Regeneration Bill (LURB) will be amended in the Autumn to place a statutory duty on water and sewerage companies to update wastewater works by 2030 in nutrient affected areas. She indicates that the WMS sets out the Government s Action on nutrient neutrality in three areas:

  • “obligating the upgrade of wastewater treatment works in nutrient neutrality areas,
  • a strategic mitigation scheme and
  • clarifying the application of Habitats Regulations Assessments for post-permission approvals. “

To see the Authorities affected by nutrient neutrality issues, see our blog linked below:

The Nutrient Mitigation Scheme ‘credits’ will then be capable of being purchased by developers for mitigation. Natural England will administer the scheme (with input from other agencies). The proposals are not to crowd out’ private schemes. Mitigation will need to be in place prior to any pollution being discharged and this is to be administered via conditions of obligations – as such this will be a timing consideration for new development. Wastewater treatment works will be required to operate at ‘highest level’ in affected areas mitigating impacts not just for new but also existing areas, this will have to take effect from the end of 2030 and therefore development mitigation must bridge the gap in the intervening period.

How housing land supply calculations will be affected by deliverability concerns in affected areas is also to be addressed in planning guidance over the summer, but the Chief Planner indicates that it will be for ‘decision takers to make judgements on impacts on delivery timescales’, reiterating the WMS tone.

Significantly, Averley indicates that:

“Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions….”

And states that the Practice Guidance will be updated on the HRA application over the summer.

Training has been provided to LPA’s and Averley provides the below link to access the training material offered:

Nutrient neutrality and planning system

In addition to offering funding of £100k to each affected catchment, Averley indicates that the issue has been a challenge for developers and LPAs alike and indicates the proposed actions identified will result in sustainable development.

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