Housebuilders are being shackled by Natural England’s pollutant rules

Robert Nicholson, partner in Ashfords’ Property Litigation team

Natural England’s new nitrate and phosphate neutrality guidance for housebuilders is significantly impacting housing delivery and developments across the UK. To date, several hundred planning applications for residential developments across the south-east and south-west of England have been delayed or blocked due to Natural England’s new stringent nitrate and phosphate neutrality guidance.

The guidance stems from Natural England’s decision to enforce a European Court of Justice ruling on the Dutch N Case, which requires member states to protect sensitive habitats under the European Commission’s Habitats Directive.

Robert Nicholson

Natural England has therefore advised local authorities to only determine planning permission for developments that are nitrate or phosphate neutral – a task which is extremely difficult for developers and councils to effectively guarantee.

As a result, Natural England’s continued enforcement of EU legacy legislation and tough stance on nitrate and phosphate neutrality is haemorrhaging the supply pipeline of new open market and affordable homes across the UK.

The Solent area in Hampshire was the first area to really suffer from this ruling. Since the initial EU ruling in November 2018, the Solent has seen the number of planning consents granted plummet by roughly 60% since early 2018

In Somerset it has been reported that up to 11,000 new homes are locked in the planning system with little hope of the planning applications being determined in the foreseeable future because of this issue. With no solution in sight, these figures are set to continue rising.

This is impacting housing demand on a national scale, with at least 30 local authorities having been advised by Natural England not to determine planning applications for developments which are not nitrate or phosphate neutral.

If the level of disruption to the planning system seen over the last three years in the Solent is replicated across these 30 local authorities, the total number of homes gaining permission would fall by around 20,000 per year. This would account for a significant drop in permissions in the affected areas.

Given that the government has routinely failed to meet new homes building targets, Natural England’s tough stance on nitrate and phosphate neutrality is severely restricting the supply pipeline of new homes across large parts of the UK. If the government wants to meet their housing targets, it is imperative that they help lift this embargo or help achieve an adequate solution.

This is not just a problem for housebuilders, councils, or local people. This is a nationwide problem that is affecting government policy. Polling suggests that addressing the ‘housing crisis’ is a prominent issue, with 71% of new Conservative voters believing that addressing social housing issues should be a priority for the government.

How can the government deliver the needed social housing when there are widespread blocks on development around the country?

Frustration is rife within the housebuilding communities where the Natural England guidance is having such a damaging impact, as they call on more reasonable solutions to be offered, without success. This is a situation where housebuilders are having to suffer the damaging consequences of an issue they contribute very little towards in terms of phosphate and nitrate pollution. Compounding this is that many small and medium-sized developers are really being hurt the most.

It is clear that existing mitigation strategies are largely ineffective and/or are not fit for purpose in relation to smaller and medium sized developments. As a result, we are now working with a growing group of developers to try to secure a proper understanding within government of the significant damage being caused by the Natural England guidance with a view to pro-actively developing viable technical and political solutions for this issue.

However with no immediate end in sight, we encourage any developers impacted by Natural England’s guidance to join the group, to work with the government to swiftly address this issue by introducing new guidance which accurately reflects the needs and priorities of local communities.

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