LURB Watch 2: The nutrient amendments have landed
Yesterday evening, at some point during the 6.15pm showing of Barbie at the Haymarket Odeon*, the proposed nutrient amendments to the Levelling-Up & Regeneration Bill were published.
The relevant amendment paper can be downloaded here. It has been published under the snappy title 'HL Bill 142-IV(f) Amendments for Report (Supplementary to the Fourth Marshalled List)'.
At first glance the amendments can be divided into two categories:
- Additional provisions and amendments to existing provisions relating to the regulation of water companies; and
- Proposed amendments to the Habitat Regulations.
The first category of amendments is the largest. It is also the category I am least qualified to comment on.
The amendments largely empower the Secretary of State to make changes to, or impose conditions on, the environmental permits governing waste water treatment plants.
As such, I will let more qualified colleagues ( *cough* Claire Petricca- Riding and/ or Jill Crawford *cough*) explain them to you in due course.
On a first read through, however, it looks as if the overall intention is to significantly tighten up the rules around permitted levels of nutrients in treated waste water flowing into protected habitats by 2030. The same date by which the upgrade works are required.
These provisions, when taken alongside the measures announced yesterday to tackle agricultural run off, would seem to represent a genuine effort to tackle nutrient pollution at source.
The second set of amendments, however, are likely to be controversial.
The Government is proposing to add three new provisions into the Habitats Regulations.
- Regulation 85A, which relates to planning applications etc.
- Regulation 85B, which relates to permitted development; and
- Regulation 110A which relates to land use plans.
The provisions all follow a very similar format, so I have copied the text of the key parts of Reg 85A below:
"Decisions where nutrient pollution in waste water is relevant: general
85A—(1) This regulation applies where—
(a) a competent authority makes a relevant decision,
(b) the potential development is development in England,
(c) urban waste water from any potential development could affect a relevant site, and
(d) that waste water would be dealt with
— (i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or
(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.
(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential 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 63(1) or 65(2), or
(b) the potential development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.
(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made—
(a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 63(1) or 65(2) and despite paragraph (3)(a),
(b) in representations made by the appropriate nature conservation body, in accordance with regulation 63(3), or
(c) by any other person.
(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation."
The effect of these provisions, if adopted, would be to essentially remove consideration of the impacts of nutrient pollution from the appropriate assessment process for the vast majority of planning applications.** They would not, however, affect the consideration of the impact of water abstraction on protected habitats - so Natural England's water neutrality restrictions would still remain.
If enacted, the proposed amendments to the Habitat Regulations would not come into effect immediately, but would instead "come into force on such day as the Secretary of State may by regulations appoint".
As I mentioned yesterday, these changes are likely to trigger a fairly strong reaction from the House of Lords when it reconvenes on September 4th.
At the very least, I would anticipate some very pointed questions from some of the cross-bench peers....perhaps around how the proposed amendments will ensure that "Natural England will work with local authorities, the private sector and others to tackle nutrient pollution and work towards the long term health and resilience of the river systems" as promised in yesterday's press release. Or what these changes will mean for those nutrient mitigation schemes that are either already up and running or in the process of coming forward.
This may be the closest Parliament TV has come to being "must-watch television" for a while.
Popcorn, however, will be entirely optional.
* It took the best part of a month, but I have finally seen Barbie. I LOVED it. DLUHC will not ruin it for me. Barbie is amazing. You are Kenough. Dreamhouses are not building regs compliant.
**urban waste water is a defined term that encompasses residential and industrial waste water but does not cover agricultural run off.
“Decisions where nutrient pollution in waste water is relevant: general
85A—(1) This regulation applies where—
(a) a competent authority makes a relevant decision,
(b) the potential development is development in England) urban waste water from any potential development could affect a
relevant site, and
(d) that waste water would be dealt with—
(i) under an environmental permit granted under Chapter 2 of Part
2 of the Environmental Permitting (England and Wales)
Regulations 2016, or
(ii) in accordance with standard rules published under Chapter 4 of
Part 2 of those Regulations.
(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential development, whether
alone or in combination with other factors, will not adversely affect the relevant
site.”
Key Contact
