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Nutrient Neutrality Update for the Tees Catchment: A Way Forward?
It’s been a whole year since Natural England sent shockwaves through the housebuilding industry across England, including those 12 local authorities within the catchment of the River Tees, by increasing the number of catchments and authorities that are subject to its advice in respect of nutrient neutrality. Over that period, nutrient neutrality has been a hot topic in the North East with the advice of Natural England being that planning permission, including for reserved matters and where conditions still need to be discharged, cannot be legally granted for residential developments unless they are able to demonstrate nitrate or phosphate neutrality. The Tees catchment is experiencing high housing pressure with more than 500 dwellings needed per annum. The HBF estimate that the delivery of 21,420 homes within the North East have been held up by the announcement last year. In the light of this level of need and the fact that the River Tees is only subject to Nitrogen problems (some other catchments have Phosphorous or both which require more land to mitigate), the catchment has been selected as the location to test the proposed credit system. Natural England is set to launch its nutrient credit bank later this month and this blog examines the proposed application process and allocation system and what this means for development proposals that are currently being held up by nutrient neutrality. How are credits established? There are requirements in the Levelling Up and Regeneration Bill (LURB) for all waste water treatment works that serve a population of more than 2,000 in the affected catchment areas to be upgraded to the highest technically achievable limits by 2030. In the meantime, Natural England has identified temporary mitigation measures to bridge the gap until the new requirements are in placebetween now and 2030 (and continue post 2030 given that Natural England and Northumbrian Water believe that upgrades to treatment works will only negate two thirds of the need). The topography and geography of the Tees catchment makes the reversion of arable land the most suitable temporary mitigation method and will generate the highest number of credits in the shortest time. This is followed by the creation of wetlands, although these can take three years to establish. So far, Natural England has been able to fallow enough agricultural land to generate 1,600 credits to be made available for mitigation within the Tees Valley catchment over the next 12 months. What is the current position on occupancy rates? The 12 local authorities that fall within the Tees catchment have commissioned an independent study into the occupancy rates that are to be used within the credit calculations. The report is expected to be published and made available before the end of March. Whilst Darlington Borough Council have confirmed they will be using a figure of 0.8 residents per household, it is still to be confirmed as to the other 11 local authorities as each are dependent on their own demographic data. Figures are based on a calculation of net additional increase in the local population as a result of new development, as well as the declining size in the average household, and so the average occupancy rate used for credit calculations differing from the figure of 2.4 residents per household that is applied by Natural England in its nutrient calculator currently. This figure is based on the national average household assumption that all residents would be new to the area, even though Natural England has accepted that some people would move locally and would therefore not result in any additional nutrient impact within the defined catchment. How will the credit bank system work? Applications for credits will be open once a Quarter, with the first batch released at 9am on 31 March 2023. Guidance on what to include in the application will be released on 27 March via the website in order for applicants to prepare the necessary information and calculations. Initially, there will be 400 credits available in each batch with any that are not claimed rolling over to the next batch. Natural England is confident that more credits will be unlocked if the revenue is returned quickly to enable it to invest in more sites and make more credits available. The process of applying will be online via the website. If an application is successful, a 10% deposit will be immediately payable. Natural England will then issue a certificate that can be submitted with a planning application. The certificate will have a 36-week expiration date from being issued; Natural England believe that this will stop credit banking. Should planning permission not be granted after 36 weeks then the credits will be returned to the ‘credit bank’. However, it is expected that there may be some flex in this should there be any undue delays that are out of the applicant’s control, such as a deferred planning committee. Should planning permission be granted, then the balance of the payment for the credits will be due within 12 weeks of determination. The full certificate will then be issued which can be used to discharge any pre-occupancy conditions relating to nutrient neutrality. It has been confirmed that the deposit will be refundable should the application get refused, however it is uncertain if this will happen if the certificate expires. The credits will be allocated on a first come, first served basis through the application process. Whilst this will inevitably lead to some inconsistency it was determined that it was crucial to keep the process simple and this was the best approach to balance with fairness. Applications will be divided into major (over 50 dwellings) and minor (fewer than 50 dwellings) applications (albeit the credits will be issued based on the size of the site rather than the applicant). In order to assist SME builders, the credits will be allocated over a 40:60 split, meaning there will be 160 credits available for major applications and 240 credits available for minor applications in the first batch. Any credits allocated for minor applications that are not allocated can be transferred for use by major applications. Natural England estimate that the first batch of credits for major applications will cover approximately 3 large developments (over 50 dwellings) across the Tees catchment. Subsequent batches will be released every three months as follows: Batch 2 – 30 June 2023 Batch 3 – 30 September 2023 Batch 4 – 8 January 2024 Natural England confirmed that the price per credit would be £1,825. Using the occupancy rate of 0.8 that is to be applied by Darlington Council it is estimated by Natural England that an average of 1.14 credits will be required for each dwelling. It therefore estimates that the cost per dwelling will be around £2,100 (1.27% of the average house price in Darlington). As it stands, the credit calculator does not anticipate the upgrading of water treatment works in 2030 as the LURB has not yet received royal assent. However, as soon as this takes place, the calculator will need to be updated to take this into consideration. What does this mean for current and future applications? Whilst this is a positive step towards achieving a solution for nutrient neutrality, it will create some uncertainty for developers as to the realistic timescales in which credits can be obtained via the nutrient credit bank. Applications are only open once a Quarter and the first come first served approach means that the majority of applications will miss out initially. Natural England has chosen not to prioritise applications that have already been submitted and are ready to be determined (following a resolution on nutrient credits). This may hold up housing that can come forward for delivery now. Instead, they have taken the approach they have in order to offer a ‘fair’ opportunity for all applications. There is also still uncertainty about applications that only need to mitigate for part of the site, where on-site mitigation can be provided for some of the site. For example, if a site of over 50 units applies for credits through Natural England it would be considered as a major application (where the demand for credits is greatest). However, on-site mitigation may negate the need for a portion of the site, leaving fewer than 50 units to be mitigated for through the credit bank. Although the application would only be requesting credits for less than 50 dwellings, the scale of the development would still be considered under a major application. Natural England suggest they would consider this on a case-by-case basis. Natural England is keen for this initiative to be successful and is encouraging a high uptake in using its credit bank in order to unlock more revenue to further increase the supply of credits (thus lowering the demand and competitiveness). In time and as more land is unlocked, this will create stability and Natural England claim that their £30m investment has the potential to generate £80m which will be used to improve the offering. However, until this stability is established, and the backlog of applications starts to clear, it is likely that there will be an extremely high demand for an inadequate supply of credits. Lichfields will be continuing to closely monitor the situation with nutrient neutrality and would be more than happy to assist with credit applications once the new credit bank has launched for the Tees catchment. Please get in touch if you have any queries or need any assistance with calculations or any advice on projects that may be caught up in this process.


Nutrient Neutrality – A housing supply headache
This blog forms part of a miniseries covering the nutrient neutrality issue; in this case focusing on a recent Five-Year Land Supply appeal we worked on in Ashford Borough (ref. 3284479). Nutrient neutrality is becoming an ever-growing delivery problem nationwide. In many cases, schemes are simply unable to be granted planning permission as they cannot support onsite mitigation or the LPA may require a contribution to an as yet unavailable strategic solution. They are therefore reliant on strategic solutions to come forward first leading to a moratorium on granting permissions. A knock-on issue is a conflict with the requirement for LPAs to demonstrate a five-year housing land supply (5YHLS) of ‘deliverable sites’ (NPPF, Paragraph 74). But what does it mean for 5YHLS in practice? On a macro level, any LPA affected that might otherwise have been performing well can suddenly became vulnerable to a 5YHLS challenge. Sites with existing detailed permissions can build out as expected, but the future pipeline may be held up as those sites with allocations or outline permission in affected areas are now unlikely to come forward in the short term, leaving an ever-growing shortfall. The most affected LPAs will be those where the majority of the land is subject to the moratorium; especially where this area covers key urban areas or locations where key strategic developments were planned (like Ashford Borough). It will also particularly impact any LPA with a 5YHLS reliant on sites without detailed planning permissions (i.e. allocations and outline permissioned sites). There will also be a growing problem for some LPAs with a recently adopted local plan. One would expect lower levels of completions and these LPAs can accrue a shortfall of supply against their Plan targets; making it harder and harder to demonstrate a 5YHLS. Going to the specifics of 5YHLS, the policy requirement is to demonstrate a supply of ‘deliverable’ sites. This is where the recent Appledore Road appeal (ref. 3284479) comes in. Housing supply is dealt with in Paragraphs 7 to 20 where it’s ultimately concluded that Ashford Borough Council cannot demonstrate a 5YHLS (a point that was common ground between the Council and appellant, albeit the scale of the 5YHLS shortfall was in dispute). The key points made by the Inspector link back to the definition of ‘deliverable (see NPPF, Annex 2); that sites should be “…available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years” and for Category B sites “clear evidence” must be provided to be considered deliverable. In the context of the nutrient issue he states: “Many of the sites that are in the paragraph b) category of the definition are within or on the periphery of Ashford and are affected by the Stodmarsh nutrients issue, … The Council has published guidance on how it can be mitigated, including options on-site or off-site ... … I am not convinced that the evidence presented by the Council is sufficient to clearly demonstrate that all the sites that would be likely to be delayed due to the Stodmarsh nutrients issue would be able to deliver the contributions that it has included within the five-year period.” (Paragraphs 10 and 14). It is therefore not the fact that the nutrient neutrality issue exists that is the problem. It is the evidential requirements associated with demonstrating a site is ‘deliverable’ in the context of 5YHLS; namely that sites must have a realistic prospect of delivering and be suitable ‘now’ for development. Notionally, if the evidence satisfactorily demonstrated to the Inspector that a strategic solution would be delivered at a certain point in time, with permissions following, and reasonable lead-in times until first delivery after that, then the affected sites may not have been removed (although the timescales as to whether and what they might prospectively deliver in the five year period would still be relevant). The key implication of this is that as things develop, we should see a clearer picture emerge with regards to the implementation of strategic solutions. Therefore, the impact of the nutrient neutrality issue could be a short to medium term problem in terms of ‘deliverability’ as evidence becomes more and more robust (assuming any strategic solutions are implemented sharpish). This of course doesn’t have any impact on the immediate problem and LPAs may struggle to convince an Inspector that plans at the very early stages to implement a strategic solution serve to show a ‘realistic prospect’ of completions in the relevant five-year period. Finally, its worth noting that this appeal shows the policy aim of 5YHLS in action. A lack of 5YHLS – for whatever reason – engages the ‘tilted balance’ of Paragraph 11(d) in the NPPF. This means granting planning permission unless any adverse impacts of doing so would demonstrably outweigh the benefits. In the case of the Appledore Road site, it is outside the nutrient neutrality affected area and the appeal was allowed with the titled balance engaged. It will now be part of the shorter-term solution to the wider delivery problems in the Borough, delivering much needed housing (including 50% affordable) but wider benefits as well.    Image credit: Nilfanion