Where has Nutrient Neutrality come from?

Nutrient Neutrality (NN) is underpinned by the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). This UK legislation transposed the EU Habitats Directive (92/43/EEC) into UK law. Practical implementation of the Habitat Regulations is amended by case law. In 2018, a ruling in the Court of Justice of the European Union (CJEU) referred to as the “Dutch Case” (Joined Cases C-293/17 and C-294/17) changed the implementation of the Habitat Regulations in the UK (the CJEU still had primacy in UK courts at the time of the ruling). New development within the hydrological catchments of certain nature conservation sites (Habitats Sites) now need to mitigate any additional nutrient pollution they input to affected sites. Without mitigation, developments cannot achieve planning consent. The impact of NN has hit the housing development sector particularly hard. In affected catchments, de facto moratoriums on new housing developments are now in place unless developers can secure nutrient mitigation.    

Recent case law developments

Since 2019 when NN first started affecting parts of England, there have been two key case law rulings. Wyatt v Fareham Borough Council [2022] upheld the legality of some core principles that underpin how planning applications for new developments calculate the amount of mitigation they need. In Harris and Anor v Environment Agency [2022], the central arguments were not related to NN but the case had wider implications related to interpretations of the Habitats Regulations and Habitats Directive. Specifically, the case indicates that the Habitats Directive, as an EU directive, still has direct effect in UK law owing to provisions in the European Union (Withdrawal) Act 2018; i.e., the requirements of the Habitats Directive that drive the need for NN would still be relevant even if post-Brexit changes to the Habitat Regulations were enacted that may otherwise remove or reduce NN mitigation requirements.

Forthcoming legislative change

There are two key pieces of legislation that are currently making their way through parliament and which may impact NN. Firstly, the Retained EU Law (Revocation and Reform) Bill 2018 (“the Brexit Freedoms Bill”) is intended to remove the provisions of the European Union (Withdrawal) Act 2018 that allow for the Habitats Directive to have direct effect on UK law. The Brexit Freedoms Bill would also open up the potential for amendments to the Habitats Regulations that could impact NN. The Government recently shrunk a deregulatory push under the Brexit Freedoms Bill and there is also significant cross–party opposition to changes that will weaken the Habitats Regulations. The second notable piece of legislation is the Levelling-up and Regeneration Bill 2022 (LURB). As part of a knee jerk reaction to NN, the Government amended the LURB to contain a requirement for water companies to complete infrastructure upgrades that will reduce the amount of mitigation needed in affected areas. If the LURB passes, 2030 has been set as the deadline for these upgrades in existing NN areas.      

Other policy mood music

While not as full-fat as actual legislative change, there has been a range of recent policy announcements that highlight how NN is now baked into Government thinking on environmental issues. NN was explicitly referenced in the Environmental Improvement Plan (2023), which is an update on the flagship 25 Year Environment Plan (2018) policy. In 2022, Defra announced £40m of funding to Natural England (NE), the government body responsible for delivering NN, in order for NE to deliver nutrient mitigation schemes. Under the Spring Budget 2023, a further £100m of government funding was announced to support mitigation schemes being delivered by Local Authorities. There is also a live consultation on how to streamline and reduce tax burdens for landowners who bring Natural Capital schemes, e.g., nutrient mitigation, to market.          

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