Moves by government to allow housing developers to sidestep rules around nutrient pollution in waterways have been condemned by legal and environmental experts.
Ministers say the amendment to the Levelling Up and Regeneration Bill will dispense with “defective EU laws” around nutrient neutrality and unblock the building of 100,000 homes.
But critics claim that far from simply “doing away with red tape”, the government is eroding environmental regulation designed to protect waterways and catchments.
Under the amendment, environmental measures to tackle pollution at source will be introduced including a £280 million Nutrient Mitigation Scheme run by Natural England to offset what government said would be “the very small amount of additional nutrient discharge” attributable to the housebuilding.
However, Justin Neal, solicitor at Fish Legal, told Utility Week was being used as “a way to get around environmental regulation” by allowing for compensation where damage occurs instead of creating protections for the environment.
A 2018 European Court ruling clarified that to prevent harm to a protected site, mitigation has to be sufficiently certain to rule out any adverse impacts.
In the case of protected rivers, streams and lakes that are already suffering from nutrient enrichment as a result of sewage and agricultural pollution, Natural England currently requires local planning authorities to meet stringent requirements in assessing the efficacy of mitigation to achieve nutrient neutrality.
The government now appears “hell-bent on finding ways to change the law to remove the requirements on developers”, Neal said.
“These protections found in the Habitats Regulations are there to preserve what is irreplaceable. The Levelling Up Bill as it is worded would allow the Habitats Regulations and other legislation protecting the environment to be disapplied or for compensation to be paid instead. If the government is going to water down the existing protections even more by amending the Bill, then what hope is there to protect the most sensitive sites such as chalk streams in the future?”
The change in law has been welcomed by developers, but described as a U-turn on previous promises by environmental groups.
“The latest plans to rip up water pollution rules show, once again, that our government is backtracking on the environment and taking decisions that abandon previous commitments and promises, and ones which our European neighbours enjoy,” a spokesperson at Rivers Trust said. “We do not need to choose between new homes and clean water, we can have both.”
The organisation advocates for responsible development and the rollout of nature-based solutions across catchments to address nutrients and to encourage water companies and housebuilders to invest in natural solutions.
Levelling Up secretary Michael Gove said: “Protecting the environment is paramount which is why the measures we’re announcing today will allow us to go further to protect and restore our precious waterways whilst still building the much-needed homes this country needs.”
However, Labour’s shadow housing secretary, Lisa Nandy, said of the easing of rules: “With housebuilding projected to fall to the lowest level since World War II and our rivers full of sewage, the Conservatives are failing on both housing and the environment.
She said housebuilders should not be asked to cover for the government’s “abject failure” of environmental policy.
“Labour supports a strategic approach to housebuilding, with housing targets developed in partnership with local areas. The next Labour government will bring an end to the Tory sewage scandal by delivering mandatory monitoring on all sewage outlets, introducing automatic fines for discharges paid for by eroding dividends, setting ambitious targets for stopping systematic sewage dumping and ensuring that water bosses are legally held to account for negligence.”
Government said its plan will deliver on the legal target to reduce nutrient runoff from agriculture by at least 40% by 2038, and to lower phosphorus loadings from wastewater by 80% by 2038, and by 50% by 2028.
Natural England will work with local authorities, the private sector and others to develop strategies for catchments most impacted by current laws and with the most acute housing pressures. Government said it aims to reduce pollution at source using nature-based solutions.
Farmers will be supported to better deal with slurry and runoff with grants and investment to be made available including £25milion for innovation aimed at managing plant and soil nutrients.
Water companies are anticipated to increase spending at catchment level to meet nutrient commitments from wastewater treatment plants. For 2025-30, company spending on the water industry national environment programme (WINEP) is forecast to be several multiples of what was invested during the current asset management period to meet tougher environmental targets.