I know we have only just published an article on Nutrient Neutrality however as we’re based predominantly in the North East of England and 2 of our Team have worked in North East Council’s we’re taking a keen interest in the Nutrient Neutrality advice in the Teesmouth and Cleveland Coast Protection Area.
A formal notice from Natural England states that the Teesmouth and Cleveland Coast Special Protection Area (and Ramsar Site) (SPA) is now considered to be in an unfavourable condition due to nutrient enrichment, in particular with nitrates, which are polluting the SPA.
It is understood that this is mainly caused by farming activities and discharges from sewage treatment works. HOWEVER the concern is that this will be exacerbated by new development.
Which Council’s are bound by the Natural England Guidance?
Tees Valley and Cleveland Councils that have areas within the River Tees Catchment Area covered by the advice are:
- Darlington Borough Council;
- Durham County Council;
- Eden District Council;
- Hambleton Borough Council;
- Hartlepool Borough Council;
- Middlesbrough Council;
- North York Moors National Park;
- Redcar and Cleveland Borough Council;
- Richmond District Council; and
- Stockton-on-Tees Borough Council.
What’s the advice?
As a Competent Authority, the relevant Local Planning Authority must consider the nutrient impacts of any development within the SPA catchment area which is considered to be ‘in-scope development’ and whether any impacts may have an adverse effect on its integrity that requires mitigation. If mitigation is required it will be necessary to secure it – however this is easier to say than do.
In-scope development includes new homes, student accommodation, care homes, tourism attractions and tourist accommodation, as well as permitted development (which gives rise to new overnight accommodation). It also includes agriculture and industrial development that has the potential to release additional nitrogen and / or phosphorous into the system. Other types of business or commercial development, not involving overnight accommodation, will generally not be in-scope unless they have other (non-sewerage) water quality implications. Take a look at our recent article about The Basics of Nutrient Neutrality for further information.
What is the Catchment Area for the River Tees SPA Area?
It’s likely that if you’re looking to develop in the River Tees Catchment Area, see the plan below, and your proposal is in-scope development you will need to be aware of this advice and the impact it will have on you.
If you have already secured planning permission you’d be wrong to breathe a sigh of relief The High Court has decided that government rules aiming to mitigate the impact of nutrient pollution on protected waterways apply to the discharge of planning conditions as well as the earlier permission stage and that the legal basis of the requirements in European Union law still stands despite Brexit**.
If you have a planning application pending, unfortunately the current advice associated with Nutrient Neutrality is likely to cause significant delays to countless planning applications, so you need to know if your scheme is in-scope development. You may have received a letter from your Local Planning Authority already, we know that Hartlepool Borough Council have issued letters to applicants of pending planning applications when an application, at this time, is considered to be in-scope and therefore the Council need to consider, address and where necessary mitigate nutrient impacts prior to its determination.
If I have a planning application pending, what next?
Natural England have suggested that, in many cases, this issue can be tackled through an approach based on the concept of Nutrient Neutrality. They have provided a Nutrient Neutrality Budget Calculator (NNBC) tool for the Tees catchment, with Guidance Notes, which allows a nutrient budget to be established for any development.
The relevant Local Planning Authority may ask you to complete the NNBC which requires a set of inputs in order to calculate a new development’s nutrient budget. The calculations are completed in four stages:
- Calculate the increase in nutrient loading that comes from a development’s wastewater.
- Calculate the pre-existing nutrient load from current land use on the development site.
- Calculate the future nutrient load from land use on the development site post-development.
- Calculate the net change in nutrient loading from the development to the Teesmouth and Cleveland Coast Ramsar and SPA with the addition of a buffer. The net change in nutrient loading + the buffer is the nutrient budget.
What happens if there is an increase in nutrients associated with a development?
If the nutrient calculation results in an increase in nutrients associated with a project, mitigation will be necessary to achieve Nutrient Neutrality. It will be necessary to consider and agree any mitigation with Natural England and ensure that it is legally secured.
Nutrient Neutrality is a means of ensuring that development does not add to existing nutrient burdens and this provides certainty that the whole of the scheme is deliverable in line with the requirements of the Habitats Regulations.
How do I secure Mitigation?
Mitigation means action taken to stop nutrient pollution impacting protected sites. This could be onsite – preventing nutrient pollution directly from the development in question, or offsite – reducing nutrients from other sources that affect the protected site overall.
It will then be necessary for mitigation to be identified and secured to address any positive nutrient budget to achieve a neutral balance and this will be the challenge that now presents itself. If mitigation is required it is likely to have financial implications for your development.
Be aware that whilst, at this stage the Tees Valley Councils are working with Natural England, to agree a common approach and identify potential solutions that you may be able to subscribe to. We’ve spoken to Natural England and understand that a mitigation scheme will not be progressed quickly.
This is a new issue to the Tees Valley Councils and as such this issue will take some time to resolve, working proactively with your relevant Council is advised.
The Tees Valley Councils effected are working together with Natural England, to agree a common approach and identify potential solutions. In the meantime advice on suitable mitigation can be obtained from Natural England (Andy Whitehead or Lewis Pemberton).
What does this mean for Developers?
Developments are more likely require Habitats Regulations Assessments in catchment areas. And Developers may be asked to take action to mitigate impacts through nutrient neutrality such as:
- building additional mitigation into their plans onsite,
- working with the Local Planning Authority to arrange for mitigation offsite, or
- purchasing nutrient credits via a nutrient trading scheme (where other landowners in the catchment have taken action to reduce their nutrient load).
Delivering ‘Nutrient Neutrality’ under the Habitats Regulations is likely to impose additional costs on developments. And the process will certainly add delays to the process.
From a development perspective the process of securing planning permission has just become harder for in-scope developments within the River Tees Catchment Areas. The advice is relatively new to many authorities. So in the short terms we anticipate an embargo on issuing decisions where the advice would be relevant.
Processing applications is going to become even more protracted with the additional assessments required and consultations necessary.
Finding appropriate mitigation is going to be difficult for some types of development. Protracted in terms of securing it and for others not possible to mitigate. Ultimately things are going to become more expensive and uncertain for developers in the short term.
We’ve put together various documents which developers need to be aware of:
- Nutrient Neutrality – A Summary Guide
- Nutrient Neutrality Mitigation Principles
- Natural England’s Advice for Development Proposals
Our article The Basics of Nutrient Neutrality covers this current hot topic in Town Planning further.
*This advice is recent therefore interpretation of this advice may change when more details, practice guides etc are produced.
**C.G.Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities. Case Number: CO/12/2023