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Page updated 11 August 2022
For frequently asked questions on nutrient neutrality please see the FAQs below.
In July, the government issued further information about Nutrient Neutrality and steps to be taken to assist with the delivery of mitigation schemes to help development proceed. Mitigation schemes within the affected areas will be necessary to permit further development, such as housing growth.
The government issued a ministerial statement by George Eustice (Secretary of State for Environment, Food and Rural Affairs) on 20 July 2022.
It sets out that the government will:
- Place a legal duty on water companies to upgrade wastewater treatment works by 2030 in nutrient neutrality areas
- Require Natural England to establish and deliver a Nutrient Mitigation Scheme
This government advice was followed by a letter about nutrient neutrality and habitats regulations assessment from Joanna Averley (Chief Planner) issued on 21 July 2022.
The Norfolk Authorities are working together to ensure consistency of approach on Nutrient Neutrality. The ministerial statement and Chief Planner letter are being considered carefully to establish whether it provides a basis for enabling permissions to be issued now, either with conditions or restrictions or until there is a better understanding of mitigation schemes to be delivered by Natural England and confirmation that the schemes are deliverable. When this is clarified, we will provide further updates.
Regarding using Natural England nutrient calculators and the Habitats Regulations process, the Court of Appeal decision in R (Wyatt) v Fareham BC and Natural England was issued on 15 July 2022. This decision confirms that Local Planning Authorities can rely on Natural England's guidance and nutrient calculator tools. However, these are not the only tools that can be used when calculating nutrient loading. They are one way of carrying out an 'appropriate assessment', and their use is not mandatory. However, the Court of Appeal decision suggests that a planning authority should follow the methodology suggested by the statutory nature conservation body unless it has good reason not to do so.
Royal Haskoning is continuing with their work on behalf of the Norfolk Authorities, which includes developing a bespoke nutrient calculator for the Norfolk catchments. They are also exploring identifying short-term, medium, and long-term mitigation solutions.
The Norfolk Authorities will provide further updates on the progress of the work of Royal Haskoning.
Frequently asked questions
What is Nutrient Neutrality?
In March 2022, Natural England issued advice to all Councils in Norfolk about the impact of phosphorus and nitrogen on water quality within the wider catchment of the River Wensum and The Broads. This advice impacts a large area of Norfolk, including:
- Broads Authority
- Broadland and South Norfolk
- Great Yarmouth
- North Norfolk
What water bodies are affected?
Across Norfolk, catchments of the River Wensum Special Area of Conservation (SAC) and The Broads SAC are impacted.
What does the Natural England advice mean?
Unless it can be demonstrated that certain development proposals will not add to the phosphorus and nitrogen issue, planning permission for a range of development types, including additional overnight accommodation, should not be granted according to Natural England. This advice affects existing planning proposals already submitted and prevents many decisions from being issued at this time. The advice also impacts future plans or projects within the wider catchment area.
How do I know if Nutrient Neutrality impacts a specific site?
Natural England provided maps in March, but at a scale that made it challenging to identify specific sites in detail. Each Local Planning Authority now has maps on its website showing the catchment in more detail, which will enable the identification of particular sites. Unfortunately, we are unable to share those maps. However, if you are unsure which sites are affected, please contact your Case Officer or Natural England.
What applications are affected?
Whilst the advice covers all types of overnight accommodation, including:
- new homes
- student accommodation
- care homes
- tourism attractions
- tourist accommodation
- permitted development (which gives rise to new overnight accommodation)
It also affects any development not involving overnight accommodation but may have non-sewerage water quality implications, including various commercial or agricultural-related schemes.
My site is not in the catchment – does that mean it is not affected by Nutrient Neutrality?
In most cases, if you are well outside the catchment, then the Nutrient Neutrality advice from Natural England will not likely apply. However, where schemes are closer to the catchment boundary, it will be important to understand if foul flows from additional overnight accommodation will be processed at Wastewater Recycling Centres, which discharge into the affected catchments. In those circumstances, the Local Planning Authority will require further information from an accredited source to demonstrate where a specific site drains.
Where can I find information about where foul flows drain from my site?
Where development drains into Anglian Water’s network, you can obtain this information from their digdat service. There is a cost for this service. Anglian Water cannot advise where you intend to drain into a private network or sewage treatment plant, nor can they provide advice regarding NN or mitigation.
Why are mapping data relating to Nutrient Neutrality not in the public domain and free of charge?
Each Council has maps on their website showing the affected catchments, enabling the identification of specific sites. However, with foul flows, Norfolk Councils do not have catchment maps for Wastewater Recycling Centres for the public domain due to map licencing issues.
What are the Conservation of Species and Habitats Regulations 2017, and why do they matter?
The Conservation of Species and Habitats Regulations 2017 (Habitats Regs) require local planning authorities to ensure that new development does not cause adverse impacts to the integrity of protected habitats. These protected habitats would include Special Areas of Conservation such as the River Wensum and The Broads.
The Local Planning Authority is the competent authority under the Habitats Regulations and will need to assess the implications of nutrient enrichment for relevant plans and projects within its area. Where the Local Planning Authority cannot lawfully conclude that development within the catchment of the River Wensum or the Broads Special Area of Conservation and Ramsar site will not have an adverse effect, permission would have to be refused. However, where there is sufficient evidence to rule out likely significant effects, permission can be granted.
What is the Natural Environment and Rural Communities Act, and why does it matter?
Section 40 of the Natural Environment and Rural Communities Act 2006 (as amended) places a duty on local authorities to conserve and enhance biodiversity, including when exercising its functions as a Local Planning Authority. Councils are under increasing pressure to ensure that development does not result in a net loss of biodiversity.
What impact do phosphorus and nitrogen have on water quality and the condition of Special Areas of Conservation?
In freshwater habitats and estuaries, poor water quality due to nutrient enrichment from elevated nitrogen and phosphorus levels is one of the primary reasons for habitat sites being in unfavourable condition. Excessive levels of nutrients can cause the rapid growth of certain plants through the process of eutrophication. The effects of this look different depending on the habitat. However, in each case, biodiversity is lost, leading to sites being in ‘unfavourable condition’.
What do Local Planning Authorities need to do?
Each Local Planning Authority (LPA) is the competent authority required to fully consider the nutrients implications on affected sites when determining affected planning applications.
The LPA will need to carry out a Habitats Regulation Assessment (HRA). It is suggested that if your development is affected, then you provide a shadow HRA and then carry out, based on the scientific evidence provided, an Appropriate Assessment (AA). This assessment establishes whether the proposal will have a significant effect (alone or in combination) on a protected site.
The competent authority should only grant permission if they have made certain at the time of Appropriate Assessment that the plan or project will not adversely affect the integrity of a habitats site, in that, where no reasonable scientific doubt remains as to the absence of effects.
The Natural England advice states that LPAs need to apply a “precautionary approach”.
Why can’t you ignore the Natural England advice and grant planning permission for affected schemes?
Local Planning Authorities are the competent authority under the Habitats Regulations, they could, in theory, disregard the advice of Natural England. In most cases, it would likely be considered unlawful to grant planning permission where it could not be demonstrated beyond reasonable scientific doubt that a plan or project would not cause adverse impacts to the integrity of protected habitats. Planning permissions issued without proper regard to the Habitats Regulations (or other legal duties) may be subject to legal challenge, if successful, could lead to planning permission being quashed.
What does mitigation look like?
Mitigating the impact of phosphorus and nitrogen on water quality within the wider catchment of the River Wensum and The Broads is complex. Ideally, each development should seek to achieve nutrient neutrality. Achieving nutrient neutrality often requires mitigation as part of development, either in the form of on-site treatment of wastewater and surface water runoff or by offsetting any increase in nutrient loading by converting land on or off-site with woodlands or wetlands or through other means of mitigation designed to reduce phosphorus and nitrogen entering into the river. Work is ongoing to establish a range of short, medium and long-term mitigation options.
Can I pay a tariff and have my permission approved?
It is very likely that as mitigation options are identified and ways to deliver mitigation secured, tariff schemes may be created, enabling developers to pay a tariff to be used towards off-site mitigation. Given that mitigation has not been identified nor has any delivery of mitigation been costed, identifying or setting an appropriate tariff rate is not currently possible. Until the mitigation measures required are clear, a tariff-based solution is unlikely to satisfy the requirements of the Habitats Regs.
How long is this going to take to resolve?
Experience from elsewhere across the country suggests that identifying appropriate mitigation solutions can take some time both in terms of understanding the type of mitigation required and securing that mitigation for 80 to 125 years as part of any tariff-based solution. In this case, the impact of phosphorus and nitrogen on water quality within the wider catchment of the River Wensum and The Broads requires mitigation, which adds to the complexity.
All affected Norfolk Authorities are working together to find a solution alongside relevant partners. Finding a solution is a high priority given the impact Natural England’s advice has on delivering housing and employment growth across Norfolk.
Why did Natural England not raise nutrient pollution concerns sooner as part of wider growth plans across the County?
Local Planning Authorities were surprised to receive the advice from Natural England when it did and without prior warning. However, the advice is now in the public domain. Unless it is subsequently withdrawn, the issues raised within the advice must be considered by each competent authority as part of the assessment under the Habitats Regulations.
Will Natural England be providing advice and support to Local Planning Authorities?
Natural England has provided the methodology and calculator tools in their advice and is working with Local Planning Authorities.
Natural England has indicated that it is for the competent authority, the Local Planning Authority, to assess whether a plan or project will result in adverse impacts on the integrity of protected habitats. It will be the competent authority who completes the Habitats Regulations Assessment (HRA) and Appropriate Assessment (AA). Natural England will, in most cases, be consulted when an HRA and AA are produced, but they may not necessarily provide detailed advice. Norfolk Authorities are working with Natural England to ensure that all necessary support and guidance are in place to enable smooth processing of applications, particularly once mitigation solutions are understood.
Will Natural England provide advice and support to applicants and agents on Nutrient Neutrality?
Whilst applicants and agents are free to contact Natural England. Early indications suggest they will not comment in detail on specific cases and will likely refer an applicant or agent back to the Local Planning Authority as they are the competent authority under the Habitats Regulations. Norfolk Authorities are working with Natural England to ensure that all necessary support and guidance are in place to enable smooth processing of applications, particularly once mitigation solutions are understood.
Catchment Area Map
Use our catchment area map to check if your site is affected. This map will help identify whether a site falls within the catchments.
How to view the catchment areas
- Open the catchment area map.
- Select the menu What would you like to do?
- Select Map Features
- Select the symbol to the right of Area Regulation, Restriction & Mgmt
- Select Nutrient Neutrality Catchments
Alongside all other local planning authorities in Norfolk, the Council has received a letter dated 16 March 2022 from Natural England about nutrient pollution in the protected habitats of the River Wensum Special Area of Conservation and the Broads Special Area of Conservation and Ramsar site.
The letter advised that new development within the catchment of these habitats comprising overnight accommodation can cause adverse impacts to nutrient pollution. Such development includes, but is not limited to:
- new homes
- student accommodation
- care homes
- tourism attractions
- tourist accommodation
- permitted development (which gives rise to new overnight accommodation) under the Town and Country Planning (General Permitted Development) (England) Order 2015
- any development not involving overnight accommodation, but which may have non-sewerage water quality implications
The Conservation of Species and Habitats Regulations 2017 require local planning authorities to ensure that new development does not cause adverse impacts to the integrity of protected habitats. Such as the River Wensum or the Broads before granting planning permission. There are no identified mitigation solutions available locally to resolve these impacts.
Whilst the Council assesses the implications of these matters, it cannot lawfully conclude that development within the catchment of the River Wensum or the Broads Special Area of Conservation and Ramsar site will not have an adverse effect. Therefore, until these matters are resolved, the Council will not be able to grant planning permission for developments comprising overnight accommodation within the affected catchments.
The Council will work closely with its neighbouring authorities and Natural England to better understand the implications. And identify possible options for mitigation to ensure sustainable development can proceed. Unfortunately, it is not possible to state how long this may take to resolve. However, the Council will keep this web page updated with more information as it becomes available.
Nutrient Budget Calculators
Whilst mitigation solutions to address nutrient enrichment for the catchment of the River Wensum SAC and The Broads SAC are likely some way from being established, applicants with live applications already submitted or prospective applicants and agents wishing to consider the submission of proposals within the catchment in the future can now use the Nutrient Budget Calculator provided by Natural England.
This calculator is the first step to understanding the nutrient load of a development. It can help identify whether a proposal is likely to add to the nutrient load within the catchment and require mitigation or whether the development can be considered nutrient neutral.
In the latter case, where development is nutrient neutral, subject to confirmation from Natural England, such developments can likely be approved without mitigation.
For those with live planning cases, your case officer will be in contact to discuss this with you further.
The Broads Catchment Calculator
Whilst North Norfolk is affected by two catchments, these directly overlap one another. The Council have been informed that The Broads Catchment Calculator should be used.
Natural England has also provided a guidance document to help with the completion of the calculator.