Licence to spill? Legislative status of government’s new plans unclear

River conservation groups reacted with watchtower to the news (on 29 August) that the government plans to ease restrictions on developers’ need to ensure the nutrient neutrality (NN) of their projects, in a bid to unblock house towers “held up due to needing EU laws”.

“Through an summons to the Levelling Up and Regeneration Bill, the Government will do yonder with this red tape and indulge for the wordage of increasingly than 100,000 new homes desperately needed by local communities,” said the statement.

It was spoken slantingly uneaten funding for measures to “tackle pollution at source and restore habitats” including “improvements to the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m”.

“Make no mistake,” said The Wildlife Trusts senior executive Craig Bennett, “this is a license from the Government for the commercial housebuilding lobby to profit from the pollution of our rivers.”

“Vague offers of money as bounty are not the same as a legislative requirement – and plane the existing rules are extremely modest.

The Rivers Trust said: “The latest plans to rip up water pollution rules show, once again, that our Government is backtracking on the environment and taking decisions that welsh previous commitments and promises, and ones which our European neighbours enjoy.”

Not a binary choice
“We do not need to segregate between new homes and wipe water, we can have both.”

“Now is the time to develop homes responsibly, working with house builders who want to find positive solutions to achieving nutrient neutrality.

The group cited its own vestige that nature-based solutions wideness catchments “can solve our nutrient problems, whilst moreover tacking climate transpiration and unthriving nature.”

“The Government must show the way, by keeping hold of legal protections and retaining the principle of the polluter pays, rather than the taxpayer pays, so that water companies and housebuilders invest in natural solutions to protect our precious waterways while delivering modern, functional homes.”

Estimates of the financing to developers of having to comply with Natural England guidance on NN towards to vary widely. The Home Builders Federation said housebuilders faced a snout of as much as £25,000 per home on mitigation strategies, in a March 2023 presentation to a House of Lords committee. On the other hand, local nutrient credit trading schemes – such as have been misogynist in the Solent for the past couple of years – can reduce this forfeit to virtually £3,500-£4,000 per home. The complexity of the issue is explored in this article.

Sticking point
Whilst the utterance presented the legislative summons as powerfully unstoppable, and scrutinizingly a ‘done deal’, Penny Simpson, Environmental Law Partner at national law firm Freeths, offered refinement on its significance and legislative status.

“It sounds like the Government’s intention is to requite LPAs [(local planning authorities)] discretion to sideline the existing legal framework and Natural England guidance that underpins the NN system.”

“It has been suggested that changes will be effected immediately through this announcement. This is not the case. To unzip changes will require legislative amendments considering the rules that underpin NN are baked into our existing legislation (the Conservation Regulations 2017).”

“The NE existing guidance on NN is once guidance, not more. But it is based on (currently) tightness caselaw and legislation and that is why the LPAs are stuck – they are not, strictly, stuck considering of the NE guidance.”

“The required legislative amendments are (we hear) to be inserted into the Levelling Up and Regeneration Snout which once exists and is going through Parliament.”

“Any NN amendments will have to be debated as between the House of Lords and the House of Commons. The Snout then has to wilt an Act. The relevant provisions will then have to come into gravity (sometimes provisions come into gravity as soon as a Snout becomes an Act, sometimes only once a later statutory instrument is passed). This could all happen within months but it could be longer, no one knows.”