For more than four years, housing development has been held up in certain water catchment areas which are of nature conservation importance. The is where special areas of conservation or special protection areas, previously protected at EU level, are already under stress owing to nitrate or phosphate pollution (usually due to historic farming practices).
Natural England has advised local planning authorities that an appropriate assessment cannot be reached under regulation 63 of the Conservation of Habitats and Species Regulations 2017 to the effect that further development causing additional sewage or surface water run-off will not affect the integrity of nearby SACs and SPAs unless measures are secured to guarantee neutrality, either on- or off-site. Under the 2017 regulations, unless a development can pass that appropriate assessment test, it’s stuffed, no go, unless a further, high-threshold “imperative reasons of overriding importance” test is passed.
Appropriate assessment is required, according to Natural England, not just when planning permission is to be granted, but (subject to the outcome of CG Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 1622 (Admin); [2023] PLSCS 118, which in due course will be heard by the Court of Appeal) when reserved matters or pre-commencement conditions are to be discharged.
This has stalled housebuilding in 27 water catchments, affecting 62 local authority areas across England, and, according to government statistics, around 16,500 new homes annually. At the end of August, the government finally brought forward proposals to seek to address it. In part, this was a package of measures to tackle the underlying causes of nutrient pollution, including doubling to £280m investment in Natural England’s nutrient mitigation scheme, accelerating the protected site strategies programme introduced by the Environment Act 2021 and taking action on agricultural nutrient pollution.
So far so good…
However, more controversially, the government also announced a late amendment to the Levelling-up and Regeneration Bill, currently at the report stage in the House of Lords, which would have removed from the appropriate assessment test any consideration of the effects of nutrients arising from urban waste water (basically water discharges from development).
The government’s proposal drew attack from the media and from environmental groups, pointing out that the government had committed to no regression from current environmental standards. Was this not regression, given that the additional pollution to a particular catchment area could arise before sufficient mitigation measures had kicked in? Indeed, this was the Office for Environmental Protection’s conclusion. For the public, there was perhaps some conflation of the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters.
Ahead of the amendment being debated in the Lords on 13 September, the political temperature rose. The RSPB tweeted (and quickly retracted) its “liars” allegation. Environment secretary Thérèse Coffey sought to rebut the OEP’s concerns in a response letter. There was a debate in the House of Commons on 5 September, initiated by a question by the Green Party’s Caroline Lucas. Many of us perhaps agreed with Labour MP Clive Betts’ intervention: “This is hardly a new problem, is it?… Last year we had the Levelling-up Bill, which was really a planning Bill with a bit of levelling up added on – no mention of the issue there… If it is such a serious issue, why has it taken the government so long to act? It looks like the government are making it up as they go along. This is a panicked response from the government to the collapsing numbers of housing starts, which the minister simply wants to do something – anything – about.”
The formal position of the Labour Party on the amendment at that stage was more difficult to gauge, but it came out against it on 12 September, proposing an alternative amendment (which was then withdrawn during the debate without a vote).
The Bill has had a difficult ride at report stage, with the Lords voting against the government on several changes and, given Labour’s stance on the nutrient neutrality amendment, it was perhaps no surprise when the amendment was defeated by 192 votes to 161.
The amendment cannot be reintroduced when the Bill returns to the Commons. There is, at time of writing, a rumour that a fresh Bill will be announced to seek to drive the provision through using the government’s Commons majority, but that would inevitably prove highly contentious.
The episode has caused huge frustration. Frankly, it has been a mess.
Is legislation even necessary?
Plainly, the government should redouble its efforts to work with affected authorities, farmers and the water industry to introduce strategic measures to reduce nutrient deposition into protected catchments.
Clearly, it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, owing to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant catchment as a result of the particular proposal.
With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that, therefore, there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, legislation may not be needed.
Whatever the politics, this problem needs to be resolved. It must not become an opportunity for pre-election point scoring.
Simon Ricketts is a partner at Town Legal LLP
