How nutrient neutrality affects planning permission in England

The mechanism

The government's planning practice guidance explains that a Habitats Regulations Assessment refers to the distinct stages of assessment which must be undertaken in accordance with the Conservation of Habitats and Species Regulations 2017 to determine if a plan or project may affect the protected features of a habitats site before deciding whether to permit it. All plans and projects, including planning applications, which are not directly connected with or necessary for the conservation management of a habitats site require consideration of whether they are likely to have significant effects on that site (gov.uk).

The steps, and where nutrient budgets sit

1. Screening. The guidance states that a significant effect should be considered likely if it cannot be excluded on the basis of objective information and it might undermine a site's conservation objectives, and that a risk or a possibility of such an effect is enough to warrant an appropriate assessment.
2. Appropriate assessment. Where the potential for likely significant effects cannot be excluded, the competent authority must make an appropriate assessment of the implications for the site in view of its conservation objectives. This is the stage at which a nutrient budget and any mitigation are considered.
3. Consultation. The guidance states that a competent authority must consult Natural England for the purposes of the assessment and must have regard to any representations it makes within a reasonable time.
4. The test. The competent authority may agree to the plan or project only after having ruled out adverse effects on the integrity of the habitats site. The guidance states that an appropriate assessment must contain complete, precise and definitive findings and conclusions to ensure there is no reasonable scientific doubt as to the effects of the proposal.
5. If adverse effects cannot be ruled out. The guidance states that where there are no alternative solutions, the plan or project can only proceed if there are imperative reasons of overriding public interest and the necessary compensatory measures can be secured. That is a high bar and not a route ordinary housing schemes take.

Two points that decide applications

• Mitigation cannot be counted at screening. Following the Court of Justice judgment in People Over Wind, the guidance states that when making screening decisions competent authorities cannot take into account mitigation measures, and that such measures may only be taken into account as part of the appropriate assessment itself.
• Mitigation is not compensation. The guidance states that mitigation measures are protective measures forming part of a project intended to avoid or reduce direct adverse effects, that any measures relied on need to be sufficiently secured and likely to work in practice, and that measures aimed at compensating for negative effects cannot be considered mitigation.

What this means commercially

It means the constraint cannot be traded away in a planning balance, and it means mitigation has to be real, secured and evidenced rather than promised. It also means the practical work sits with your consultants rather than with the council: the authority must be satisfied, and the material that satisfies it comes from the applicant. Where a scheme cannot demonstrate neutrality, the usual outcome is not refusal but delay, sometimes a long one, while mitigation is secured.

Nothing on this page is legal or planning advice. It summarises published planning practice guidance so you know the shape of the process. Instruct an ecologist or planning consultant experienced in your catchment, and take your council's current advice.