Business Clinic: Council wants “nutrient neutrality” for our new farm building

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, solicitor Harvey Davies of Thrings Agriculture advises on how the nutrient impact of new developments is making planning approval more complicated and how farms can mitigate the impact of their projects.

Q: We recently submitted an application to the council for prior notification under agricultural permitted development for a livestock accommodation building. The local planning authority has responded and decided that prior approval is not required.

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 (LPA) 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?

A: 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 effect on planning and development across 74 LPAs. 

See also: Business Clinic: can we build if water main on proposed site?

The new agricultural building is intended for livestock and so 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 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 effect on the SAC.

However, if the new building results in the expansion or intensification of farming operations (that is, increasing livestock numbers on the holding), mitigation measures will need to be considered to show that the development will cause no overall increase in nutrient pollution affecting the SAC; in other words, that it can demonstrate “nutrient neutrality”.

Mitigation

While some councils are starting to develop nutrient credit schemes, enabling developers to purchase credits to offset the additional nutrient loading caused by their development, such schemes are rare and often reserved for residential development.

So, the development of a new farm building will need to consider onsite mitigation measures to achieve nutrient neutrality. Such measures must be in addition to existing habitat creation projects; and cannot be retrospectively claimed from recent land use change (for example, recently planted woodland).

They must also be effective for as long as the agricultural building is used for its initial intended purpose.

Further details relating to how the effects and calculations of nutrients relating to a particular development and the associated mitigation measures can be found in the relevant Natural England (NE) 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 (for instance, natural wetlands, woodlands, or grasslands)
• A treatment wetland such as an Integrated Constructed Wetland 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 NE for an opinion. If sufficient information has been provided, NE must then notify the applicant and the council of its opinion.

To obtain the council’s written approval under Regulation 77 of the Habitats Regulations, an application will need to be submitted to the council giving details of the development. This must be accompanied by a copy of any relevant notification by NE under Regulation 76, along with any fee required to be paid.

The council must consider any representation made by NE and then may give written notification of its approval of the new building only after having ascertained that it will not adversely affect the integrity of the SAC.

Any mitigation measures in support of the application to offset the effects of the new 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 is not an issue which will disappear soon. Early advice will ensure that any issues arising are resolved quickly and without jeopardising your farm development plans.

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