Nutrient neutrality is causing considerable difficulties for development in rural areas and unfortunately is not an issue which will disappear soon. Taking early advice will ensure that any issues arising are resolved quickly and without jeopardising your farm development plans.
Question.
We submitted recently an application to the Council for prior notification under agricultural permitted development of an agricultural building to be used for livestock accommodation. The local planning authority have responded and decided that prior approval is not required for the building.
However, in the authority’s determination notice, there is an “informative” which states that it is a condition of any development, which is likely to have a significant effect on a European site, that works should not commence until the developer has received written notification of the approval from the local planning authority under Regulation 77 of the Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”).
Apparently we need to demonstrate “nutrient neutrality” to protect a nearby Special Area of Conservation – what does this mean?
Answer.
As indicated by the Informative, under the Habitats Regulations, the Council must be satisfied that any new development which “is likely to have a significant effect on a European site”, will not adversely affect the integrity of that site. European sites are protected under the Habitats Regulations and include sites designated as Special Areas of Conservation (“SAC”). Recently, the number of European sites which are in unfavourable condition and failing their conservation objectives has increased significantly and this issue is now having a substantial impact on planning and development across 74 local planning authorities.
The new agricultural building is intended for livestock and therefore potentially gives rise to additional nutrients entering the catchment of an SAC which is in an unfavourable condition. Accordingly, the Council is required to undertake an appropriate assessment of the implications of the new agricultural building for the SAC in view of its conservation objectives.
It may be that the new building is to help existing farming operations become more efficient or easier (such as improving livestock handling), in which case, it should be straightforward to demonstrate that there will be no adverse impact on the SAC. However, if the new agricultural building results in the expansion or intensification of farming operations (ie increasing the number of livestock on the holding), then mitigation measures will need to be considered to show that the development will cause
no overall increase in nutrient pollution affecting the SAC; or, in other words, that it can demonstrate “nutrient neutrality”.
Mitigation
While some Councils are starting to develop nutrient credit schemes, which enable developers to purchase credits to offset the additional nutrient loading caused by their development, such schemes are still rare and often reserved for residential development only.
Accordingly, the development of a new agricultural building will need to consider onsite mitigation measures to achieve nutrient neutrality. Such measures must be in addition to existing habitat creation projects; and they cannot be retrospectively claimed from recent land use change (eg. recently planted woodland). They must also be effective for the duration of the impacts (ie for as long as the agricultural building is used for its initial intended purpose). Further details relating to how the impacts and calculations of nutrients relating to a particular development and the associated mitigation measures can be found in the relevant Natural England and/or local planning authority guidance for the relevant designated European site. Examples of mitigation measures include:
cessation of intensive agricultural practice on a piece of land and converting it to semi natural habitats (eg. natural wetlands, woodlands, or grasslands);
A treatment wetland such as an Integrated Constructed Wetland (ICW) which is specifically designed to remove nutrients; and
agricultural management measures such as fallowing of land, cover crops, provision of buffer strips can provide short (fixed) term interim mitigation before other in-perpetuity measures are implemented and become effective.
Procedure
Before submitting an application to the Council to obtain its approval, the applicant may, under Regulation 76, apply to Natural England for an opinion. If sufficient information has been provided, Natural England must then notify the applicant and the Council of its opinion.
In order to obtain the Council’s written approval under Regulation 77 of the Habitats Regulations, an application will need to be submitted to the Council which:
(a) gives details of the development which is intended to be carried out; and
(b) is accompanied by—
(i) a copy of any relevant notification by Natural England under Regulation 76; and
(ii) any fee required to be paid.
When making its assessment, the Council must take into consideration any representations made by Natural England and then may give written notification of its approval of the new agricultural building only after having ascertained that it will not adversely affect the integrity of the SAC. Any mitigation measures provided in support of the application to offset the impacts of the new agricultural building will need to be secured by a s106 legal agreement with the Council.
Nutrient neutrality is causing considerable difficulties for development in rural areas and unfortunately is not an issue which will disappear soon. Taking early advice will ensure that any issues arising are resolved quickly and without jeopardising your farm development plans.
For more information on issues raised in this article please contact Harvey Davies, Solicitor, Thrings Agriculture team.
