Nutrient neutrality are words that many developers just don’t want to hear.    The concept stems from EU legislation and case law about the adverse impact that nutrients from sewage can have on protected nature zones.  To avoid that impact, developments (usually those that involve overnight accommodation) need to show that they are nutrient neutral.   Not all parts of England are affected but the areas that are significantly increased when Natural England identified many new areas under threat in March 2022.  This took the number of authorities affected to 74 of the 333 local authorities in England.

While the cause of this pollution is not confined to new development, the implications mostly are. Many authorities have simply imposed embargoes on new residential development unless they are satisfied that the proposed mitigating factors neutralise the increased pollution effects.   Mitigation can involve upgrading existing sewage treatment facilities to remove nutrients before they are discharged into the watercourse, or putting agricultural land into fallow.

Not only has new development been embargoed but so has development that has already been permitted but which is subject to further approval, either by way of reserved matters or pre-commencement conditions.  A High Court challenge to making this type of development subject to the same rules failed in the summer. 

The estimate is that around 100,000 new dwellings have been stalled as a result of nutrient neutrality and pressure has been mounting on Government to do something about this.  This resulted in last minute amendments to the Levelling Up and Regeneration Bill that would have rendered the issue of nutrient neutrality irrelevant when determining planning applications.  Instead, the focus would have been on upgrading sewage treatment works.  These proposals were met with joy by the development industry and cynicism by environmental groups. However, the proposals didn’t last long as they were rejected by the House of Lords in mid-September.     

The latest twist in the saga has seen the Prime Minister promising to reintroduce similar legislation in the next session of Parliament.  Meanwhile developers who are able to put together mitigation schemes are seeing their developments get approval. Otherwise much new development remains caught in the log-jam.