It has been just over a year since a European Court of Justice (ECJ) ruling on the environmental impact of nitrates from new developments which threw plans for thousands of homes in England into doubt.

The effect of the ruling which some have described as ‘colossal’ means that at least 11 Local Planning Authorities (LPAs) cannot grant planning permissions for fear of breaching the European Union’s habitat regulations.

Concerns have been raised for years over high levels of nitrate pollution. Nitrates are chemicals found in agriculture and domestic wastewater (sewage). If they enter the water supply, they cause excessive growth of green algae, resulting in oxygen depletion and the creation of  a so-called “dead zone” where no other organisms can survive. This has devastating consequences for marine and bird life.

On 7 November 2018, the ECJ ruled in two joint cases related to the EU Habitats Directive, known together as the ‘Dutch case’ (C-293/17 and C-294/17). The judgement raised the bar that developments would have to clear when being assessed to see if they broke rules protecting sensitive habitats. This includes EU ‘Special Protected Areas’ (SPAs).

During these appraisals, known as ‘appropriate assessments’, promoters of such projects will often cite measures that they argue will mitigate any habitat harm. The ECJ judges said that assessors should not take these measures into account, “if the expected benefits of those measures are not certain at the time of that assessment”.

The decision has had far-reaching repercussions for developers. In June, wildlife regulator Natural England responded to the case, and other ECJ rulings by issuing new guidance to councils on compliance with Habitats Regulation Assessments (HRAs). It adopts a much stricter position on pollutants such as nitrates and phosphates in water environments.

Furthermore, Natural England predict a “likely significant effect” on such protected sites “due to the increase in wastewater from new developments coming forward”. Its advice recommends that LPAs in and around such high-nitrate areas should withhold planning permissions unless stakeholders are absolutely sure they can eradicate the negative impact from a development. However, Natural England’s advice is not legally binding.

Smart Planning have already come across a number of LPAs in Essex which are complying with the HRAs for new developments. We continue to monitor the progress being made in respect of the HRAs and any new relevant environmental legislation which comes forward.

29 November 2019