No-one should be playing party politics with the nutrient neutrality issue. It’s difficult. It needs to be fixed. This is a quick post just to try to head off some of the comments that I have seen on social media today because the urgent need for a solution is in danger of being subsumed by general scepticism of this Government, exacerbated by the way that water companies have been allowed to fail in relation to water supply and sewage discharges. I write this on the back of Nicola Gooch’s excellent blog post this morning, LURB Watch: Government confirms Nitrates’ amendments to be tabled in House of Lords shortly but since then we now have the proposed amendments to the LURB.
First of all, the basics:
House building is not the reason why some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Instead this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure.
But the consequences of outflows from new housing has been seen by Natural England as the straw that would break the camel’s back and therefore its advice to local planning authorities faced with planning applications in affected catchments has been, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.
So housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.
To underline, this is not mainly about the polluting effects of new homes – it is about pre-existing problems.
I’ve written about the issues on various occasions, eg most recently in my 26 November 2022 blog post Nutrient Neutrality: Possibly Good News & Possibly Bad News and in my 6 June 2023 blog post CG Fry: AA Post PP.
The Government plainly recognises that the problem needs to be addressed. The current position, where so many schemes are stalled, is ridiculous and out of proportion to the extent to which housebuilding is actually the issue.
Right, so what is the Government’s solution?
Following Michael Gove’s press statement today, 100,000 more homes to be built via reform of defective EU laws (29 August 2023), the latest tranche of tabled amendments ( https://bills-api.parliament.uk/api/v1/Publications/52407/Documents/3872/Download ) to the Levelling-up and Regeneration Bill have now been published, which include a number of amendments to the Conservation of Habitats Regulations.
The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:
“(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.
(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—
(a) an appropriate assessment is required by regulation 77(6), or
(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”
Strengthened duties on water companies by way of their environmental permitting processes are also proposed in the amendments, but this is radical!
If enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed. On balance in my view it is to be supported. However, the Government does need to be ready with answers to questions like these:
- Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit (NB Mr Gove, don’t give me that “defective EU laws” politicking – it’s our water system and environmental permitting system that is defective not the underlying law!), why does this not amount to regression? In its defence no doubt the Government would point to the commitments in the press statement not just to “significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030” but also the package of longer term measures that are set out in detail in the statement. But if these commitments are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area? Why isn’t the Government confident that this would be Natural England’s advice? Wouldn’t that be a more legally coherent strategy than simply taking nutrients issues out of the appropriate assessment process? And if Natural England can’t sign that position off in relation to any particular protected area, doesn’t that rather have the whiff of regression?
- What about developers who have signed up to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue from their plate? Or will Natural England and local authorities still raise the nutrients issue by way of objection to proposals in planning terms, even if no longer able to wave the Conservation of Habitats Regulations big stick? Is it indeed right (or even envisaged) that developers should be let entirely off the hook?
- What about the water neutrality issue in Sussex, which has led to an equivalent logjam, or issues as to recreation impacts in other areas of the country? Similar principles surely apply.
- Will Parliament allow the Government to get away with shoehorning this set of provisions into the Bill at this late stage (see the comments in Nicola’s post) and what does it mean for the timing of Royal Assent? How confident can we be that the provisions will (a) survive to Royal Assent and (b) be brought into force?
These are just initial thoughts. Better informed commentary very welcome.
Simon Ricketts, 29 August 2023
Personal views, et cetera
SIMONICITY 