Defra publishes notice of 19 "sensitive" catchment areas

Defra has published the Designation of Sensitive Catchment Areas Notice 2024 which takes effect from 25 January 2024.

Following the “Dutch case” C-293/17 heard in the European Court of Justice in 2018, nutrient neutrality has been a topical issue with regards to planning proposals for new development. In this case, the European court ruled that new development affecting Special Protection Areas (SPAs) and Special Areas of Conservation (SACs) must achieve nutrient neutrality. This means that the amount of nutrients produced by the wastewater of a development must be mitigated in order to protect freshwater habitats suffering from increased levels of nutrients (in particular, nitrogen and phosphorus). This was followed by Natural England’s Nutrient Mitigation Scheme of July 2022, which was implemented to enable developers to offset nutrient pollution by way of purchasing nutrient credits in order to discharge their obligations under the Habitats Regulations.

In the latest development on the issue, the Department for Environment, Food and Rural Affairs (Defra) published a notice on 25 January 2024 which outlines 19 catchment areas which have been designated as “sensitive for phosphorus or nitrogen where a habitats site is wholly or partly in England is considered in an unfavourable condition by virtue of pollution from nutrients in the water from one of both of these nutrients.” The areas include SACs, SPAs, Sites of Special Scientific Interest (SSSIs) and Ramsar sites.

These areas were allocated by the Secretary of State in accordance with the power under Section 96C of the Water Industry Act 1991, which was introduced by the Levelling-Up and Regeneration Act 2023.

Who does this affect?

For water companies regulating the designated catchment areas, they now must ensure that any wastewater treatment works, serving a population of more than 2,000 people, meet required nutrient removal standards by 1 April 2030.

It also compels local planning authorities, who are considering planning proposals for any development which drains by a sewer to a wastewater treatment works, to make the assumption that the nutrient pollution standard in these areas will be met by 2030 for the purposes of Habitats Regulations Assessments. In practice, this means that developers could buy credits for any development due to be constructed prior to 2030 by way of the Nutrient Mitigation Scheme and rely on this obligation on the relevant water companies in order to regulate the remainder.

However, the notice confirms that a limited exemption process will be completed by 1 April 2024, and any wastewater treatment works exemptions will be confirmed by then. This might affect the degree of nutrient mitigation that any development must secure in certain catchments.

Nutrient neutrality continues to prevent development from proceeding in an increasing large number of local planning authorities in England and Wales.  Michael Gove has recently underlined his determination to bring forward proposals to unblock this problem but it is difficult to see how he can do this having had to withdraw his previous proposals following opposition in the House of Lords.  In the intervening period while we inch closer to 2030, it is possible that some flexibility may be possible but this is unlikely to deal with anything other than the largest sites that have a much longer time period over which dwellings will be constructed.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.