A legal requirement that new houses do not pollute nearby wetlands, rivers and nature reserves has halted residential development across large parts of England, leaving local authorities and housebuilders in limbo, Joey Gardiner reports

River Solent

Source: Shuttertock

The River Solent near Keyhaven in Hampshire, an area where nutrient pollution has been an issue for many years 

The Home Builders Federation recently estimated that plans for around 100,000 new homes are now on hold, effectively indefinitely, over the technical issue of nutrient pollution in water courses. The estimate comes after fresh Natural England guidance was detonated over unsuspecting councils in mid‑March, which both increased the number of affected council areas from 32 to 74, and raised the bar for those areas already struggling with the issue.

The new guidance, which was issued without warning or consultation, has left many affected local authorities and developers with their heads in their hands, at a loss to know how to proceed. The effective upshot of the advice, which identifies a raft of protected habitats in a poor condition from pollution, is that councils cannot issue any residential permissions in which nutrient pollution is not fully mitigated or offset, as it would immediately be struck down by judicial review.

But mitigating pollution from nitrogen and phosphorous – the two principal culprits – cannot be done at the stroke of a pen, and developing solutions takes time, effort and money.

It is hard to escape the conclusion that this problem – which has grown since first being identified on the south coast around a decade ago – has been allowed to develop due to government inaction

It is easy to rail against Natural England for changing its advice without warning, but actually the quango was caught between a rock and a hard place. The legislation around sites protected under habitats regulations makes it clear that it has to act immediately once it has identified a threat to the sites. The ecological problems identified by it are real enough, too.

However, it is hard to escape the conclusion that this problem – which has grown since first being identified on the south coast around a decade ago – has been allowed to develop due to government inaction, with seemingly zero strategic action to tackle the issue. The result is now that the cost and burden of sorting out an environmental mess is falling wholly on developers and planners despite being only fractionally of their making.


  • Following a 2018 EU Court of Justice ruling, public body Natural England issued advice making it clear that, in certain specified council areas, no developments should be permitted unless they can prove that they are “nitrate and phosphate neutral”.

  • This came on the back of concern about the potential impact of excessive phosphates and nitrates. In freshwater habitats and estuaries increased levels of these nutrients can speed up the growth of certain plants, affecting other wildlife.Natural England initially outlined 32 areas that would be affected. However, in March 2022 this number was extended to 74 (see table below).

  • Local authorities that ignored the Natural England advice would be immediately vulnerable to judicial review on any planning permissions issued, making it effectively impossible to take decisions. 
  • The Home Builders Federation has estimated that 60,000 homes were delayed in the original 32 areas alone and has warned that tens of thousands more will now be held up as a result of the extension.
  • Savills has said affected areas could see drops in construction output of up to 70%.
  • Planning consultant Turley has concluded that the issue of nutrient neutrality is now a “byword for frustration” and delay in affected areas.

That is not to say that development is not a source of nutrient pollution – waste from homes clearly contributes to the problem. Now, new development, of course, is only a tiny fraction of the urban environment in any one year, so even if nutrient pollution were wholly an urban problem, one could question the fairness of throwing a burden on new-build to address this issue.

Norfolk Broads

Source: Shutterstock

All development without full planning permission has been paused around the Norfolk Broads due to damaging levels of nutrient pollution

However, the evidence shows that waste from the urban environment is not the main cause of nutrient pollution – more than that, in many areas it is not even a significant cause of pollution. For example, according to figures from UK Water Industry Research, quoted by the HBF, just 4% of the phosphate pollution in the affected Somerset river catchments came from the urban environment, with the vast majority (94%) coming from livestock, arable farming or wastewater treatment works.

The problem is, largely, a twofold one of outdated farming practices and a failure by water companies to invest in upgrades to wastewater treatment plants which would remove much of this pollution at source

Those who understand the world of environmental and agricultural rules and regulations say that the problem is, largely, a twofold one of outdated farming practices and a failure by water companies to invest in upgrades to wastewater treatment plants which would remove much of this pollution at source. Both of these issues have been exacerbated by austerity-era cuts to the Environment Agency, which has the role of regulator of water quality.

Consultants say that water companies have in the past, staggeringly, resisted offers by developers and groups of developers to pay for fairly straightforward upgrades to water treatment works which would deliver the necessary reduction in nutrient pollution that way. The attitude of the water companies has seemingly been that if the upgrade is not already in the five-year programme agreed with the regulator, then, simply, “computer says no”. 

George Eustice

Environment secretary George Eustice says the government has “highly ambitious plans” to tackle the problem  

In the meantime, this has left developers and local authorities casting around for what are often much trickier ways to mitigate nutrient pollution to achieve the “nutrient neutrality” necessary to allow a scheme to go ahead. In areas such as the Solent, where nutrient pollution has been an issue for a number of years, some innovative offsetting solutions such as the creation of new woodlands and wetlands have been developed. But these kinds of solutions are not only expensive for developers, they are also time-consuming and in some cases wildly impractical to deliver the necessary benefit. 

A study for Somerset council, for example – again quoted by the HBF – found that 5% of the county would have to be made fallow every year in order to deliver the necessary offset for the area’s housing requirement – clearly impossible. Meanwhile, in Kent a plan to create wetlands was estimated as likely to take at least five years to establish.

And all that work, of course, does nothing to solve the pollution problem; it simply prevents developers – at great expense – from making the existing pollution marginally worse.

In the face of mounting concern from environmental groups over pollution levels – and growing public concern over the extent to which water companies have been allowed to discharge raw sewage into waterways (something which will have undoubtedly contributed to nutrient pollution) – the government appears to have done little to suggest it has grasped that more fundamental action needs to be taken to tackle this problem, other than simply relying on the Natural England advice.

farm pesticide

Source: Shutterstock

Arable farming, and in particular the use of some fertilisers, is a significant contributor to nutrient pollution  

Remember, this government has pledged both to deliver 300,000 homes a year by the middle of this decade and, in its 2019 manifesto, “the most ambitious environmental programme of any country on earth”. But, with the apparent inaction to directly address the root of the pollution problem, the government gives the impression that it cares little about the actual delivery of either of these election promises.

Rather than take the time to grasp the problem so that those causing the bulk of it – farmers and water companies – are forced to address it, the government has let responsibility to sort this out drift onto already hard-pressed council planners, and (as it appears to see it) deep-pocketed and unpopular developers.

In this sense, the approach is of a piece with that of the government over the cladding issue: the idea being that developers have had it very good for a very long time, and should be expected to deal with any additional cost burdens that are thrown at them without that impacting on the delivery of housing numbers.

However, while this may be true for the biggest firms, which are still expanding, the latest data on housing starts suggests that the wheels may be starting to come off this approach overall. Late last month, data on newly registered energy performance certificates showed that housing starts are now down on pre-pandemic levels – and the government can no longer use covid-19  as a covering excuse.

Soon the government is going to have to decide whether it cares about delivering on its housebuilding promise or not

There are some signs that it has started to realise it needs to change tack over nutrient neutrality, with the water regulator Ofwat given a new remit for its next regulatory cycle, which looks more likely to focus on improving water treatment, and the environment secretary having spoken about long-term solutions to the pollution problem. George Eustice said in March that the government now had “highly ambitious plans to reduce nutrient pollution from both agriculture and sewerage works and has further plans for the future”.

But it is early days. Exactly how ambitious these plans will be remains to be seen. Soon the government is going to have to decide whether it cares about delivering on its housebuilding promise or not. In doing this, solving the nutrient neutrality issue in a way that is both fair to the environment and to the development industry will be a key test of its approach.

Full list of affected councils 

Councils newly affected Councils affected since 2018
Allerdale Borough Council Ashford Borough Council
Borough Council of King’s Lynn and West Norfolk Basingstoke and Deane Borough Council
Breckland Council Bournemouth Christchurch and Poole Council
Broadland & South Norfolk Council Canterbury City Council
Carlisle City Council Chichester District Council
Cheshire East Council Cornwall Council
Cheshire West and Chester Council Dorset Council
Copeland Borough Council Dover District Council
Darlington Borough Council East Hampshire District Council
Derbyshire Dales District Council Eastleigh Borough Council
Durham County Council Exmoor National Park
East Devon District Council Fareham Borough Council
East Riding of Yorkshire Council Folkestone and Hythe District Council
East Staffordshire Borough Council Gosport Borough Council
Eden District Council Havant Borough Council
Great Yarmouth Borough Council Herefordshire Council
Hambleton District Council Isle of Wight Council
Hartlepool Borough Council Maidstone Borough Council
High Peak Borough Council Mendip District Council
Hinckley and Bosworth Borough Council Mid Devon District Council
Lake District National Park New Forest District Council
Lichfield District Council New Forest National Park Authority
Malvern Hills District Council Portsmouth City Council
Middlesbrough Council Sedgemoor District Council
North Norfolk District Council Somerset West and Taunton District Council
North Warwickshire Borough Council South Downs National Park Authority
North West Leicestershire District Council South Somerset District
North York Moors National Park Southampton City Council
Northumberland County Council Swale Borough Council
Northumberland National Park Test Valley Borough Council
Norwich City Council Wiltshire Council
Redcar and Cleveland Borough Council Winchester City Council
Richmondshire District Council  
Shropshire Council  
South Derbyshire District Council  
South Lakeland Council  
Stockton-on-Tees Borough Council  
Swindon Borough Council  
The Broads Authority  
Vale of White Horse District Council  
West Berkshire Council  
Peak District National Park Authority  

Source: Department for Environment, Food & Rural Affairs