The trouble with phosphates: how planning can avert a natural housing disaster

Much of the development industry is now either aware of, or has been affected by, the phosphate issues that have quite literally stopped new housing developments in their tracks across the country.

Phosphates are a salt containing the element phosphorus. They occur naturally through the weathering and erosion of rocks, or in agriculture and food production, through the use of fertilisers and food additives, and in animal and human waste. For many, it would be inconceivable that the greatest cause of delays to the delivery of new homes would be down to a nutrient. For years we have become accustomed to the causes being viability issues, a bureaucratic planning system, or a lack of local authority resources. But not phosphates.

So, what is the problem with phosphates? Put simply, a high level of nutrients in rivers and lakes affects water quality. Increased nutrient loads causes an excess growth of algae in the water, which in turn deteriorates water quality and depletes the oxygen, which plants and animals need to survive. This process is known as eutrophication. From this stems an issue, from a 2018 ruling by the EU’s Court of Justice, which required greater certainty in the mitigation of increased nutrient loads affecting any protected site, such as Special Areas of Conservation (SACs). The ruling means that planning applications for residential development now potentially need a Habitat Regulation Assessment (HRA). The HRA needs to demonstrate how the proposed development will achieve phosphate neutrality to prove beyond scientific doubt that no likely significant effects on the integrity of protected sites would occur.

In response, many LAs have put a hold on determining residential applications, while they consider how best to move matters forward. In the main, most have advised applicants that within affected areas the council needs to undertake appropriate assessments for full planning applications, outline planning applications, reserved matters applications and applications to discharge implementing planning conditions. Given that there are around 400 protected sites in England, this equates to significant disruption to LAs in their determination of applications for new homes – and the following significant problems:

• There is a housing crisis that the Government has committed to solving. When he entered office, Boris Johnson famously said that we need to ‘get young people on the housing ladder, just like their parents did’. To do this the PM said we need to ‘build, build, build. Build better. Build faster’. Natural England’s advice on phosphates has stopped any building in affected areas – counter to the Government’s pledge to provide 300,000 new homes a year.
• With a reduction in new homes comes an evitable reduction in affordable housing delivery.
• Local authority-run credit schemes have the potentially to add another layer of control and bureaucracy to the development process. The risk here is that this added control over who the councils sell credits to is undemocratic and outside of the planning process, which could result in developments with permission granted at appeal, being delayed.
• The cost of mitigating some sites that already have marginal viability may result in many developments proposals stalling in the long-term.
• A reduction in house building will have a substantial effect on SME housebuilders and developers, as well as supply-chain businesses that employ local people.

Luckily, there are a number of ways to mitigate the impacts of phosphates:

• Through fallowing existing farmland. This approach offsets the phosphate load generated by the proposed development against the reduction of phosphate-generating farmland.
• Through the creation of on-site wetland habitats that filter out nutrients, through the absorption and transformation of the nutrients by wetland plants and microbes.
• The inclusion of an on-site processing plant to remove phosphorous at the source before it is discharged.
• Through purchasing credits as part of a LA’s (or third-party) strategic phosphate mitigation scheme.

However, these issues would be better addressed through a coordinated approach from the Government. In January this year, there were hints that this was happening when the Minister for Housing, Christopher Pincer MP, wrote to advise that he was working with DEFRA, Natural England and the Environment Agency to identify short-term solutions to enable development to resume. No further update has been received on this by the Government.

Ultimately, the only real solution is for the Government to address the role that the UK water industry plays in removing nutrients before discharging into the water courses that feed into the protected sites in England and Wales. The issue of phosphates is a long-term, strategic matter that needs a permanent solution. Urgent investment and regulation of the water industry is required to ensure that phosphorous is removed at the source, which is the most logical and sustainable solution.