What is the Dutch N case?
The Dutch N case was a court judgement in the Netherlands that concerned agricultural N-pollution affecting protected heathland sites. The general principles from this case are applicable to other pollutants or receptors where there is an increase nutrient load:
“[T]he essential point being that where the conservation status of a protected natural habitat is unfavourable, the possibility of authorising activities which may subsequently compromise the ability to restore the site to favourable condition and achieve the conservation objectives is “necessarily limited””
An extreme case of what happens where there are excessive nutrients in a water course is the Turkish Sea Snot, of which there has been outbreaks since 2007, the worst being between April and June this year. A thick, slimy layer of the mucus-like matter is spreading along the Sea of Marmara near Istanbul, damaging marine life and the fishing industry. It is formed when algae are overloaded with nutrients because of hot weather and water pollution. This is an extreme case, and we are a long way away from this disaster, but it is worth having an awareness to understand the importance of the effects if left untreated.
How does the Dutch N case relate to phosphates in Somerset?
The Dutch N case judgement triggered Natural England (NE) to write to all Somerset Local Planning Authorities in August 2020, due to the unfavourable condition of the Somerset Levels and Moors Ramsar Site from the high levels of phosphates. The Ramsar Site has a huge catchment area, which is why it is causing problems for most applications in Somerset as there are only a few areas outside the catchment.
In the letter, NE advised that, before a planning application that may give rise to additional phosphates within the catchment is determined, competent authorities should undertake a Habitats Regulation Assessment. The overall aim of any application is to achieve nutrient neutrality.
What planning applications in Somerset does the phosphate neutrality requirement affect?
Essentially, a planning application relating to development that will produce a waste which has a phosphates element – whether that is human, livestock or anaerobic digester waste – is affected. Currently, it is affecting both full planning applications as well as Permitted Development Right applications (PDR) but NE’s advice on PDR applications may be changing…
For affected planning applications, the whole planning process is becoming extremely protracted, particularly as the county ecology team are under a lot of pressure. It is also making applications more expensive in terms of specialist advise and providing mitigation. However, submitting an application with a proposed solution will speed the process up and inputting one figure wrong in the phosphate calculator can result in a disproportionately high mitigation requirement.
How do we address phosphates within an application for a single residential dwelling?
Firstly, you need to determine whether you are going to discharge to a mains sewer or a private system. If the single dwelling is within 30m of a main sewer, you are legally obliged to connect to the mains sewer. If a private system, you need to determine exactly what type of system you propose – currently the Klargester BioDisc Sewage Treatment Plant is the best on the market for reducing phosphates, although it still does not achieve nutrient neutrality. It is also worth reviewing the “Interim guidelines on small scale thresholds and nutrient neutrality principles for the Somerset Levels and Moors Ramsar catchment,” produced by Somerset County Council, to see if it applies.
Then you need to arrange for a suitable specialist to complete the Phosphates Calculator to determine the level of mitigation required for your development. The calculator currently determines the total area of proposed mitigation land for the below uses:
- Constructed wetland
- Open space
- Nature reserve
- Meadow/semi-natural grassland
Mitigation can either be provided on-site, or the applicant can find somewhere else within the same catchment, or purchase credits from a trading platform like EnTrade (although currently EnTrade is not live). If the applicant is providing their own mitigation, a Section 106 legal agreement will need to be drawn up between the council and the applicant to ensure that this mitigation remains in perpetuity. We are currently unsure of the maintenance obligations required for smaller scale schemes.
How do we address phosphates within an application for an agricultural building?
Whether phosphate neutrality requirements apply depends on whether you are increasing herd size to. For example, if the building is for hay and straw storage or machinery, this does not cause a phosphate issue. Alternatively, if you have lost rented buildings to house your livestock, currently – if the holding you occupy is not increasing in herd size – this does not cause a phosphate issue. However, where you are increasing herd size, it is more complicated and I am working closely with the NFU, CLA and NE to create some practical guidance and solutions.
How does the phosphate neutrality requirement affect land values in Somerset?
The requirement to provide land for mitigation is certainly influencing the land market, whether that is by applicants wanting to buy land in a certain catchments, or landowners wanting to explore the possibilities of entering land into the EnTrade platform or other trading platform, which is likely to be more profitable than agricultural use. It will be key you obtain specialist advice from a land agent perspective but also your accountant to consider the tax implications.
To find out more information about this could affect your land or property development in Somerset, please contact Nicola Quick on 07717 727281 or firstname.lastname@example.org.