What Next For Urban Communities? Housebuilding, Habitats & Nutrient Neutrality

Continuing his blog series highlighting the key takeaways from the Landmark Chambers Land Use Conference, our senior planner, Aaron Henecke profiles Housebuilding, Habitats and Nutrient Neutrality…

“The fourth headline session, ran by David Elvin KC and Jacqueline Lean, focused on the difficulties facing the housing sector as a result of habitats protections and, specifically, nutrient neutrality. As many developers across England will no doubt be aware, nitrates and phosphates pollution has become an increasing issue, with a further 42 Local Authority areas flagged by Natural England in March 2022 as facing nutrient pollution issues (bringing the total to 74). Before diving into the implications for landowners and developers, it’s helpful to start with a brief overview of the current situation with respect to habitats and nutrients…

Habitats Regulations

“As set out in The Conservation of Habitats and Species Regulations 2017 – aka the Habitats Regulations – competent authorities have a duty to protect, conserve and restore designated European sites. This duty extends to a variety of bodies such as the Environment Agency, Natural England, statutory undertakers (e.g. water companies and energy providers), Local Authorities and even Local Councillors & Planning Committees. What this means is, where a development project has the potential to impact a European site, an LPA cannot approve an application without being certain that it will not adversely affect the integrity of that European site.

“In England, there are 300+ designated European sites which benefit from protections under the Habitats Regulations, and these include Special Protections Areas (SPAs), Special Areas of Conservation (SACs) and Ramsar Sites (i.e. wetlands of international importance) in addition to thousands of smaller Sites of Special Scientific Interest (SSSIs). Most of these sites have buffer zones or catchment areas wherein development has the potential to impact the protected sites due to recreational pressures, nutrient pollution and, more recently, water supply and abstraction.

Implications for Development

“The implications for development as a result of these protected habitats can be quite severe, with several Local Authority planning departments having ground to a halt in recent years whilst guidance and mitigation measures have been developed. In most cases, any proposals for new housing or overnight accommodation in these affected areas – whether by way of subdivision or conversion of existing buildings, permitted development or new-build – will require some form of mitigation, otherwise development will not be able to progress.

“With many LPAs now having adopted further guidance, the onus is on developers to be aware of and account for any potential impacts and mitigation required as part of their site identification and development appraisals. With respect to recreational pressures, nutrient neutrality and water neutrality, there tends to be three categories of mitigation, each of which presents different opportunities and challenges for developers:

1. Onsite Mitigation – e.g. the creation of new habitats, SuDS or Suitable Alternative Natural Greenspace (SANG) which may reduce developable areas or restrict the use of land on parts of development sites
2. Offsite Mitigation – securing the above measures on land elsewhere in the catchment area, contingent on the availability of suitable land or facilities, and which will likely have implications for S106 agreements, etc.
3. Mitigation Credits – financial contributions towards purchasing ‘credits’ to offset impacts, the detail and availability of which varies across local authorities

“As one might expect, the need for and type of mitigation secured can have varying implications for the viability of developments. Landowners and developers should also be aware of terms within conditional sales or option agreements referring to ‘satisfactory planning permission’ and ‘onerous conditions’. When it comes to planning applications, in addition to the protracted negotiation and review process, developers should also prepare for lengthy S106 negotiations, complex agreements and pre-commencement conditions, all of which have the potential to further delay the start of development.

“It's therefore increasingly important for landowners and developers to know from the start whether development sites have the potential to run afoul of these protected sites. If you would like help identifying habitats-related constraints or to discuss implications for your development, please contact me on [email protected] to discuss.”