Nutrient pollution is a significant problem for freshwater habitats and estuaries. Increased levels of nutrients, in particular nitrogen and phosphorus, disrupt natural processes and negatively impact wildlife. For both local authorities and developers in affected areas, the issue has been front and centre of development control concerns since the initial publication of Natural England's (NE) advice in 2019 (extended in 2022).

Womble Bond Dickinson has been at the forefront of advising both developers and Local Planning Authorities (LPAs) on pioneering practical solutions to allow to continued grant of permissions in affected areas.

The issue continues to add significant cost and delay to all sides of the development process, but July saw two significant developments which offer some clarity and tempered optimism…


In 2019 NE first issued advice to 32 LPAs stating that development could not be permitted in areas which risked increasing the nutrient load on protected sites, and this effectively led to a moratorium on housing in affected regions. In March 2022 NE advised a further 42 LPAs that they were now required to prevent new dwellings from adding to wastewater run-off, particularly phosphates and nitrates, bringing the total of affected LPAs to 74. LPAs were advised that no new permissions should be granted, unless the LPA was satisfied that developments could either secure nutrient neutrality, or were exempt (endnote 1).

LPAs and developers in affected areas have each been striving to find solutions to secure 'nutrient neutrality', often involving the long-term securing of nutrient-reducing land uses to 'off-set' the impacts of new development.

Wyatt v Fareham Borough Council

In July the Court of Appeal handed down its judgment in R (Wyatt) v Fareham BC & Natural England (endnote 2), dismissing an application for judicial review of Fareham BC's decision to grant outline planning permission in reliance upon the NE guidance. Detailed summaries of the judgment have been provided by those involved in the case and we won't reproduce those here.

The judgment offers some clarity around the status of NE's guidance and on the approach of LPAs undertaking habitats assessments. It is also valuable in reiterating the weight to be given to the NE guidance and its expert role in the consultation process, on the need for a measured and circumstance-specific approach to the application of the NE guidance, and to the standards to which an LPA's decision-making process should be held. 

Governmental Solutions

In July in a Written Ministerial Statement (HCWS258), George Eustice the Secretary of State for Department for Environment, Food and Rural Affairs (Defra), acknowledged the ongoing difficulties in the ability of LPAs and developers to find mitigation quickly and effectively to allow development to take place. 

Also in July, Defra, the Department for Levelling Up, Housing and Communities (DLUHC), and NE announced measures to mitigate nutrient pollution in water while unlocking house building in England (see government Press Release). The announcements are summarised below.

New statutory legal duty on water and sewerage companies

Wastewater treatment works, in "nutrient neutrality" areas, will be required to be upgraded to the highest technically achievable limits by 2030. Water companies will be required to undertake these upgrades in a way that tackles the dominant nutrient(s) causing pollution at a protected site. 

The new statutory duty will be introduced by an amendment to the Levelling Up and Regeneration Bill (see Written statement).

The Chief Planner Letter with Nutrient Neutrality and HRA Update - July 2022 goes into more detail on the proposed new statutory duty on water companies.

New Nutrient Mitigation Scheme

Defra and DLUHC will provide funding to pump prime the Nutrient Mitigation Scheme (NMS), and establish an 'Accelerator Unit'. The new unit will drive frontloaded investment in mitigation projects, including in new and expanded wetland and woodland creation. NE will accredit mitigation delivered through the NMS. NE will also work with a number of established private market and LPA-led nutrient mitigation schemes to ensure that the new national scheme 'dovetails' with these markets and provides additional support as needed.

Developers will be able to purchase ‘nutrient credits’ to discharge the requirements to provide mitigation thereby enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits. The written statement confirms that the scheme will be open to all developers "while ensuring that small and medium enterprises are prioritised". It also clarifies that the scheme will not be a requirement, but an option to discharge mitigation.

The new scheme is due to go live, 'in the autumn', and in the meantime NE will be liaising with LPAs and developers. 

Reserved matters applications

Both the Press and the Ministerial statements make it clear that government’s position is that the Habitats Regulations may apply when determining reserved matters applications and applications to discharge pre-commencement conditions:

"While we know the following will be disappointing to the developers whose sites are affected, it is important to ensure there is clarity on how the assessment provisions should operate." (…)"The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions."

The Chief Planner Letter with Nutrient Neutrality and HRA Update - July 2022 promises further planning practice guidance on this issue very soon.

Watch this space!


When the new statutory duty to provide the obligated upgrades to waste water treatment works (WWTWs), becomes law it will provide certainty on the responsibility on water and sewerage companies to address system capacity to deal with nutrient pollution. If all goes to plan, then reduced pollution levels from WWTWs after 2030 should mean that the overall mitigation burden on housing developments coming forward in nutrient neutrality areas, should in future be reduced. This longer term solution is dependent on water companies delivering by 2030. For affected developers and LPAs in 2022, 2030 will still feel a very long way away…

A more immediate solution offered is the NMS, the details of which are yet to be fully set out. The £100,000 allocated to LPAs for delivery is a questionably small sum for a rather significant problem that is in itself unlikely to help the viability of schemes in affected areas. The Ministerial Statement also used rather telling language when it stated that the cost of the scheme would be 'recouped' by developers purchasing credits.

It appears that government sees the majority of the 'support' for addressing the issue, in the immediate future, being provided by the development industry. 

The recent announcements have also failed to address the recommendation of the Environmental Audit Committee, that farming practices should be tackled to reduce excess nutrients flowing into rivers from animal waste. 

Perhaps the most pressing problems will continue on larger schemes that have outline planning permission, but where LPAs are required to undertake an appropriate assessment.

So how may a current project be able to prove its nutrient neutrality? Potential strategies, the costs of which and the ease of implementation of which varies, may include:

  • The establishment of offsite treatment wetlands;
  • Creation of interceptor wetlands (capturing agricultural run-off);
  • Upgrading of inefficient treatment plants;
  • On-site measures such as Sustainable Urban Drainage Systems (SuDS).

Womble Bond Dickinson has advised both local authorities and developers on securing and establishing nutrient mitigation strategies, and importantly on the interplay between i) the contractual securing of land-uses and 'credit' arrangements, and ii) the planning process and appropriate assessment.

If you have any questions or would like advice on any of the matters covered by this briefing, please contact us or your usual contact, and we will be delighted to assist you.



LPAs are required to undertake Habitats Regulations assessments (HRA) to ensure they do not approve plans and projects that will have a negative effect on protected sites, such as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). LPAs may only approve a plan or a project if they are certain it will have no negative effect on the site’s integrity; (Government Guidance: Habitats regulations assessments: protecting a European site).

NE, in its statutory role as an adviser on the natural environment, advised LPAs on the nutrient impacts of new plans and projects on protected sites where those protected sites are in unfavourable condition due to excess nutrients. 

In March 2022 NE advised a further 42 LPAs that they were now required to prevent new dwellings from adding to wastewater run-off, particularly phosphates and nitrates. Proving that a development avoids doing this is, in essence, what nutrient neutrality means. Thirty-two LPAs were already subject to restrictions, bringing the total of affected LPAs to 74. LPAs were advised that no new permissions should be granted unless the LPA was satisfied that developments could either secure nutrient neutrality or were exempt. The impact of NE's guidance was that residential development in the affected areas, effectively came to a standstill until mitigation solutions could be found.

The need to achieve nutrient neutrality applies to applications where there is a net increase in the number of dwellings, including single dwellings. In general, commercial development, schools, and retail can be exempted, but tourist accommodation cannot. Within the designated areas, proposals need to be supported by a HRA, which should either demonstrate neutrality or be accompanied by an appropriate mitigation strategy. Sites outside catchment area borders, but where the effluent is discharged within the affected catchments (i.e. the location of the site’s sewage outfall), will also need an HRA.

The advice from NE has been reproduced in full by some of the affected authorities; 'Advice for development proposals with the potential to affect water quality 16 March 2022', and it summarises key tools and guidance documents and lists catchment areas and local authorities affected.


Wyatt, R (On the Application Of) v Fareham Borough Council (Rev1) [2022] EWCA Civ 983 (15 July 2022) (