The objective of any environmental assessment is to capture significant effects. It does not major on subtleties, but that is the twilight zone occupied by nitrate neutrality assessments. This is why environmentalists are suspicious and developers palpably struggle
Neutrality is the product of the appropriate assessment of impacts on protected habitats. It finds its origins in an EU directive, is captured domestically through the Habitats Regulations and is bolstered by abundant case law.
The courts have confirmed impact studies “must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt”. It is also expected that “significant weight” is given “to the advice of an ‘expert national agency’”. In short, the bar is high and Natural England is all-powerful.
The current focus is the impact of nitrate-rich wastewater upon protected habitats. It is an expanding concept with water and recreational neutrality already upon us, and other neutralities waiting in the wings.
The complexity of this process is reflected in the recent Wyatt judgment, which confirmed the nitrates threat from eight new dwellings some 5.5km from a Special Protection Area. In so doing, the Court of Appeal had to grapple with occupancy rates, outputs, buffers, mitigation algorithms and endless questions of rigour.
It is a consultant’s delight, even if the environmental lobby might argue the system is simply capturing and assessing the true harm of human intervention.
Can the development industry do anything? Well, following Brexit there might be scope to define a new domestic rulebook, because most of the nuances to this ‘precautionary approach’ are derived from EU law and ECJ judgments.
Don’t hold your breath on that front, though. It requires tested guidance, new legislation and the case law to provide a resilient rulebook. We experienced this when environmental assessment was first introduced and, essentially, it is a slow pain to be endured.
A 20 July ministerial statement set out a tough line on nutrient pollution. In truth, all we can really do is continuously test the science and identify workable mitigation solutions.
Stuart Andrews is product group head at law firm Eversheds Sutherland
No comments yet