The nutrient neutrality regulations were first introduced in 2019 in a number of areas. Several more (including the catchment to the SSSI and SAC protected River Lambourn in West Berkshire) were added in March 2022.
What is nutrient neutrality?
The intention of the regulations was to reduce the amount of pollutants, mainly phosphates and nitrates, that go into the aquifers and rivers. Excess amounts can cause serious problems to the balance of the eco-systems.
The LGA’s Planning Advisory Service said that “pollution from nutrients can arise from the way that land is used in areas close to water bodies (known as water catchments). Where sites are already in unfavourable (poor) condition, extra wastewater from new housing developments can make matters worse. Pollution most typically arises from agricultural activity…from the use of buildings (homes especially)…and from surface water run-off from development.”
Note the order in which the LGA placed these three factors. We’ll come back to this. The point is, however, that the new regulations were only concerned with the second two.
How did the regulations work in practice?
One of the tests provided by Natural England was that any development which increased the number of overnight stays (ie toilet flushes) would need to have mitigation measures in place before approval could be granted. The problem was that no one was clear what these mitigation measures looked like.
I don’t know what effect these new regulations had on other planning departments but a combination of paralysis and panic could be offered as the reaction in West Berkshire. I had some sympathy for the officers. As well as the lack of clarity, this was coming up while the local plan refresh was lumbering towards its conclusion. Expert advice with DeFRA funding was promised to affected authorities but it seemed there were many fewer specialist than there were planning authorities that needed their help.
None the less, some pretty perverse decisions were arrived at. Two pubs – the Wheelwright Arms in Lambourn and The Bell in Boxford – had their very different applications (respectively a pergola and a total re-build) refused, with nutrient neutrality both times being cited as one of the reasons. This was despite the fact that neither plan would lead to more overnight stays: indeed, in the latter case it would have reduced these to zero as the new pub would have no guest rooms. Other decisions were paused or slowed. There was a general sense that it was a waste of time to lodge any application in the Lambourn catchment area, which includes a good chunk of the district, until the uncertainty was sorted out.
What has changed now?
Potentially, pretty much everything. All of this was rendered irrelevant on 29 August when the government announced that the regulations would be scrapped. The necessary legislation would be added to the fabled Levelling Up and Regeneration Bill.
Reaction to this change of tack was mixed. The official statement suggested that this would enable 100,000 new homes to be built by 2030, both of which are conveniently round numbers. In general, home builders and Tory backbenchers appear to be delighted and environmentalists and some councils are appalled.
There’s also a high level of professional exasperation. The Local Government Chronicle quotes Hugh Ellis, director of policy at the Town & Country Planning Association, as saying that “there was frustration at the amount of time and energy spent on developing plans to comply with nutrient neutrality requirements, only for the government to overturn it.”
So: is this a disaster for our waterways or not?
In many ways it won’t make any difference. The measures, though well-intentioned and already producing some benefits, were attacking the wrong target in the wrong way.
What about farming?
I drew your attention above to the order in which the main causes of nutrient pollution were ordered by the LGA. First was agriculture, which the nutrient neutrality regulations was not concerned with. Back in 2017, the UN reported that “in most high-income countries and many emerging economies, agricultural pollution has overtaken contamination from settlements and industries as the main factor in the degradation of inland and coastal waters” and that “nitrate from agriculture is now the most common chemical contaminant in the world’s groundwater aquifers”. It’s unlikely either situation has improved since.
In 2022, the BBC referred to an MP’s report which asserted that the main causes of river pollution were fertilisers (40%), untreated sewage from water companies (35%) and run-offs from roads and towns (18%). New housing developments don’t get a mention here at all.
Any attempt to reduce fertiliser usage would go to the very heart of the way we live. There is evidence to suggest that good crop yields can be obtained from using fewer fertilisers but there are too many vested interests and established supply chains that depend on the status quo, not to mention the eight billion people on the planet, many of whom depend on this technology, however precariously, who would not welcome anything that looked like an experiment. In many ways, to make this globally change is even more difficult than switching to renewable energy.
Leaving this bigger point aside, though, the nutrient neutrality rules appeared not even to accept that making changes to farming practices had any role to play in the solution to the problem of our polluted waterways.
Flaws in the system
There’s a much bigger logical flaw in the regulations, however. By stating that no extra toilet flushes would be permitted without mitigation, Natural England and DeFRA were accepting that, because of the hideous inefficiency of our sewerage system, some or all of the extra poo and pee would end up in our aquifers and rivers. The regulations thus shifted responsibility away from the water companies to provide a decent system and on to developers to provide mitigation; the assumption being that in most cases it would be needed.
That wasn’t all. The guidance from Natural England and DeFRA was, as mentioned above, fitful and the situation was made more difficult by the fact that in most of the 62 areas only some of the district was affected by the regulations. One could also question whether putting the workload of enforcing the new regulations on devolved planning authorities that were already overloaded work and – as proved by the offer of specialist support – lacked the necessary internal skills was a good idea.
All of this is not to say that the nutrient work has been pointless. We are all now better informed about the issue ands practical work has also been done. The Local Government Chronicle cites examples of councils that have already invested in mitigation measures to address nutrient neutrality, including that “Eastleigh BC has spent £20m while Fareham BC has worked with the Hampshire & Isle of Wight Wildlife Trust to rewild farmland which has been farmed intensively using high nutrient fertiliser application.” It also quotes Fareham’s Leader Seán Woodward as saying that “this approach is having a dramatic effect in lowering pollution while freeing nutrient credits to allow the building of much needed new homes.”
Politics and the law
It’s a moot point whether all these new homes will in fact get built. There’s a strong political aspect to the announcement, with the government keen to stress that it’s cutting “red tape” from Brussels which has “held us back” and provide dwellings “desperately needed by local communities.” It’s impossible to believe, as this gushing statement from Gov.uk contends, that this change will solve our housing crisis, given that it is no more than a reversal of a policy which the government didn’t need to introduce in the first place.
The statement also refers to a number of measures that will be introduced to offset and justify this reversal. There are some welcome proposals, including that sustainable drainage schemes should be applied to new developments with more rigour than currently; and introducing more nature-based solutions to drainage and pollution problems. However, most of these relate to agriculture: which provides further evidence that the whole nutrient neutrality project was aiming at the wrong target in the wrong way.
What it also tells us is that the housebuilding lobby is stronger than the environmental one.
Penny Simpson from the law firm Freeths has also pointed out that the current situation is by no means clear cut. She suggested that that the government’s apparent intention is to give local planning authorities “discretion to sideline the existing legal framework and Natural England guidance”. However, she added that existing guidance on nutrient neutrality is “based on (currently) binding case law and legislation.” It can’t therefore be lightly set aside until the necessary legislation has been passed and its provisions have come into force (which could be at a later date). In the meantime, planning authorities thus have another uncertainty to contend with.
Left to itself
The BBC reports that campaigner Feargal Sharkey has described the government’s proposed scrapping of pollution rules as “a complete and utter shambles” and that “the environment has now been left to fend for itself.”
He’s partly right. The whole nutrient neutrality issue was certainly a bit of a shambles: but, on the other hand, the environment has always had to fend for itself. It’s only in the last few years that we’ve really woken up to how much of a mess our waterways are in. We’ve also realised that the organisations responsible for managing, regulating and enforcing any improvement have been asleep at the wheel. This is admittedly during a time of unprecedented changes to demand, weather patterns and ease of investment.
The main aspect of the timing and the tone of this announcement, however, is that it’s been inspired by electoral rather than environmental considerations. It could have been dealt with some years ago. It’s now being presented as reversing a malign policy from Brussels which we are only now able to sweep away. Most decision-making in this country operates in five-year cycles. Unfortunately, the real world admits of so such limitations. Let’s see how many of the promised benefits of this carefully-timed announcement actually come to pass before the election. After that, there’s every chance the matter will be thrown into reverse once more.