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Nutrient negativity: the Government is planning to weaken legal protection for rivers

As the Government proposes amendments to the Habitats Regulations that would disapply requirements for “nutrient neutrality” in sensitive river catchments, Wildlife and Countryside Link CEO, Dr Richard Benwell tells us why these changes could be catastrophic for some of our most important freshwater spaces. 

August 2023

The Government is proposing amendments to the Habitats Regulations that would disapply requirements for “nutrient neutrality” in sensitive river catchments. This would:

1. expose the UK’s most sensitive river ecosystems to yet more pollution;
2. weaken environmental law, in direct contravention of Government promises; and
3. foist costs on the public and the environment, rather than making the polluter pay.

The whole enterprise is based on a misrepresentation of the rules, which suggests that they are stopping house-building across vast swathes of England. In fact, the rules only cover the areas where river pollution is threatening the future of our most important wildlife sites. In those areas, house-building can go ahead, but only when the developer has mitigated the effects of the extra pollution that would be caused by the development. Developers' own delays in build-out of existing planning permissions (sometimes explained by “land banking” to maximise profit) have been a far bigger blocker on housing numbers.

The government should withdraw its proposed amendment to the Levelling Up and Regeneration Bill and, instead, take forward proposed increases in the Nutrient Mitigation Scheme alongside an accelerated programme of nature recovery in affected areas.

What do the changes mean?

Currently, nutrient neutrality rules cover catchments where excessive nutrient pollution puts protected wildlife sites (Special Areas of Conservation and Special Protected Areas) at risk. In these places, a combination of wastewater and sewage, urban runoff, and agricultural pollution has caused Nitrogen and Phosphate pollution to reach concentrations that can cause serious damage to nature. Before permission for new housing is granted, a developer must demonstrate that they have mitigated the pollution problem—either using onsite measures like sustainable drainage, or by purchasing “nutrient neutrality credits”, awarded for additional pollution reduction efforts nearby.

The Government’s amendment would allow development to proceed without mitigation, on the assumption that nutrient pollution will be reduced through other means—additional public funding and guidance for developers. The wording of the proposed amendment is extraordinary. It says that Local Planning Authorities “must assume that nutrients in urban waste water […] will not adversely affect the relevant site”, even if a site assessment or a statutory agency says otherwise.

The assumption that alternative approaches will work is unfounded. It is clear that guidance is an ineffective tool for shifting polluting practices by industry. Take three current examples:

- The Government is now committed to a mandatory approach to Biodiversity Net Gain, after years of reliance on guidance proved a mess and a failure.
- We are currently waiting on Government regulations to end the use of peat in horticulture, after years of failed voluntary commitments.
- Developers’ approach to sustainable drainage is another cautionary tale, with DLUHC resorting to regulations after previous statutory guidelines were ignored time and again.

Yet these nutrient neutrality changes head in the opposite direction, taking a deregulatory approach and relying on industry good-will instead of law.

The Government has also promised £280m in nutrient offsetting. This is positive, but it is far from a reliable alternative to the law, or the large-scale private sector investment that it would have required. Under current rules, developers have to purchase a nutrient mitigation credit (costing about £2,000) for every house they wish to build in one of the 62 local authority areas covered by the rules. Instead, the Government is offering short-term funds (lasting until 2030) in exchange for long-term legal certainty. They are also expected to be capital funds, which are good for getting pollution mitigation started, but they lack the long-term revenue spending needed to ensure that mitigation schemes are properly managed. Crucially, the current rules require mitigation upfront, whereas the proposed alternative rests on the uncertain assumption that future actions will deliver improvements.

The Government is pretending that non-binding guidance and future public funding are equal to the certainty of strict legal protection and upfront mitigation. It is swapping the certainty of existing rules for a fantasy of flimsy promises.

What are the wider implications?

The Government’s amendment operates by requiring public authorities to ignore the Habitats Regulations. At the moment, if an “appropriate assessment” reveals that a proposal would cause adverse effects, then the Habitats Regulations rules kick in to ensure that plans don’t go ahead without proper mitigation or (in urgent cases) compensation.

These rules are not nuisance “red tape”. They are essential legal protections for nature, proven time and again to be proportionate and effective. The Government has repeatedly assured Parliament that post-Brexit powers would not be used to weaken environmental law. As recently as 12 June, during the passage of the Retained EU Law Act 2023, the Solicitor General said, “we will not lower environmental protections”.

By proposing these changes—amendments that weaken protection for our most sensitive rivers, amid all the furore of public concerns for our freshwater environment—the Government has shown itself willing to contravene this promise and chip away at the Habitats Regulations.

At the same time, by shifting the cost burden from the developer to the public purse, the Government is acting in complete opposition to the “polluter pays principle” (which it is obliged to consider under the Environment Act 2021). This has more than distributional implications. The requirement to pay to mitigate environmental harm creates an incentive for businesses to reduce their impact, as well as providing a steady flow of investment in nature. Perhaps the most serious change is that any extra damage to nature multiplies and transfers costs away from the private sector onto the natural environment—with the costs of environmental harm affecting generations to come.

What’s the solution?

The current situation is a symptom of years of inaction and underinvestment in pollution reduction. The answer is not to scrap the rules. Yes, more of the pollution problem is caused by water company failures (from a lack of investment in nature-based solutions and water treatment works). Yes, more of the problem is caused by diffuse pollution from farming (with hopeless enforcement of the Farming Rules for Water, and watered-down support for greener farming under Environmental Land Management). These structural problems must be addressed quickly, with a redoubling of effort under ELMs and strict requirements for water company clean-up. But it remains right that developers pay to reduce the additional harm they would cause to nature.

In the short term, Government could tackle the pollution pinch points in areas covered by nutrient neutrality without weakening the Habitats Regulations. Where delays have been experienced, it has been in sourcing nutrient mitigation credits. These are now becoming available in great numbers across the country, with the Natural England scheme expected to generate 40,000 more this financial year, with some estimates showing plans for 70,000 credits in the pipeline

To make sure credits are available, Government should increase public funds available to the Nutrient Mitigation Scheme as a way to expedite early delivery of nutrient mitigation credits as well as maintaining the Habitats Regulations Requirement for developers to pay. Where housebuilding is urgent, it could direct Natural England to focus on strategic nature-recovery schemes that go beyond mitigation, working within the Habitats Regulations to help heal beleaguered catchments.

The vote

When the amendment is proposed in the House of Lords in early September, Parliamentarians will be offered this choice: are they willing to swap strict legal protection for rivers and the polluter pays principle for the offer of industry guidance and uncertain, public-funded pollution reduction in future?

The future of housing doesn’t hang in the balance in this equation—housing will be built either way. The question is where the costs fall, and whether we are willing to accept more river pollution and damage to nature along the way.

If the Government is serious about its promises for cleaner rivers and halting nature’s decline, then it will withdraw these misguided proposals. We hope that Parliamentarians from all sides of the House will reject these plans and, instead, stand in support of serious action to reduce river pollution from every source.

Dr Richard Benwell is CEO of Wildlife and Countryside Link. 

The opinions expressed in this blog are held by the authors and not necessarily those of the wider Link membership.