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Nutrient neutrality: no change for agricultural developments

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It will not have escaped attention that the Government plans to do away with legacy EU laws to free up housebuilding in nutrient neutrality catchments. This blog looks at whether and how farmers will be affected by the proposed changes.

The Government has put forward amendments to the Levelling Up and Regeneration Bill which are aimed at unlocking new housing in areas where development has been held up by so-called nutrient neutrality rules under the EU-derived Habitats Regulations.  If they make it through the parliamentary process, the amendments will mean that local planning authorities (LPAs) must assume that nutrients draining from housing developments will not adversely impact protected habitats in nutrient neutrality catchments. The developers will not then have to demonstrate nutrient neutrality before the development can go ahead e.g. through buying nitrate or phosphate credits from approved mitigation projects or Natural England.

Where does this leave farmers?

There are two key strands to this.

First, in relation to agricultural developments.

The Government relaxation of the strict nutrient neutrality rules only applies to development producing ‘urban waste water’, basically waste water and run-off rain water from housing.  Other kinds of development which may impact on protected sites will still be subject to same scrutiny as currently applies. In other words, a Habitat Regulations Assessment will be needed and nutrient neutrality rules will apply.

So, farmers growing their livestock numbers with new sheds, rearing units, slurry stores etc. will continue to be caught by the Habitats Regulations in just the same way as they are now. If the development will have an adverse effect on a protected site, the LPAs should only give approval if a farmer can demonstrate nutrient neutrality, just as they – and housebuilders – do now. Farmers may be able to mitigate on site (e.g. by ceasing fertiliser application on a particular arable land parcel) or by buying nitrate or phosphate credits (as needed) to offset any additional output from the expansion of their business. These credits might be supplied by the LPA, by Natural England or by an approved private supplier in the same catchment.

In any event, even if the urban wastewater exemption were carried over into other kinds of developments, that would not make Habitat Regulations Assessments a thing of the past. They would still be needed - for all kinds of developments (including housing) - where the development could potentially harm protected sites for other reasons (e.g. air pollution or water stress). By far the biggest impact of the Habitat Regulations in farming has been in relation to ammonia emissions from new pig and poultry units.

The second obvious impact - and the main focus in the trade press - is that there are likely to be fewer opportunities for farmers to develop private schemes to mitigate nitrogen and phosphorous loading of waters in affected catchments if the Government’s proposed relaxation for housebuilding becomes law.

That said, Natural England’s Nutrient Mitigation Scheme, already up and running, is to be given £140m of additional funding. It will focus on measures such as creating new wetlands, tackling pollution at source and restoring protected habitats damaged by nutrients. That will provide some opportunities for landowners to develop schemes and be involved in habitat restoration. Further details on the new approach are promised ‘in the coming weeks’.

Is other environmental legislation at risk?

The Government is set to implement a mandatory biodiversity net gain (BNG) regime from late November 2023. Introduced under the Environment Act 2021, this will require all new major developments to ensure that habitats lost due on the development site will not just be replaced but will be added to, by a minimum of 10%. It will have a significant impact on all developments, including housebuilding. And, as with the Nutrient Mitigation Scheme, BNG also provides opportunities for landowners who will be able to supply biodiversity units from their land to help meet the 10% gain requirement (see our BNG: legal issues for farmers blog).

Is there a risk the government will cut through the additional burdens for housebuilders here too? We do not think so. The BNG regime is not ‘legacy EU law’; it is home-made law, passed by Parliament after the UK left the EU, and it is a major cornerstone of the Government’s Environmental Improvement Plan.

If you have any questions about this blog, or for more information about how we can assist, please do get in touch with Julie Robinson in our in our Agriculture team or Ben Arrowsmith in our Planning team.


Written by Julie Robinson and Ben Arrowsmith.