Nutrient Neutrality: Assuming too much? 

August, 2023 - Shoosmiths LLP

Following the press release earlier in the day, DLUHC and DEFRA have now published the controversial proposed amendments to the Levelling-Up & Regeneration Bill (“LURB”) to unblock over 100,000 homes 'held up due to defective EU laws'.

The crux of the amendment is that when considering an application "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." 

In the (unlikely) event that this wording makes its way through to royal assent unchanged, it will effectively mean that the impact of appropriate assessments will be curtailed in that it would not be necessary to consider the impacts of nutrient pollution as the outcome with be assumed regardless of the actual position on site.

Unsurprisingly, since the publications there have been diametric responses from the different sectors of the development industry. House builders and land promoters have welcomed the much anticipated news which it has always seen as taking the brunt of the Natural England guidance, notwithstanding the limited impact house building actually has on the issue. The amendments suggest that the burden of tackling nutrient mitigation will be taken away from developers and put on Natural England, farmers and water companies. At this stage it is unclear whether the private mitigation schemes already put in place around the country to unlock development these past few years will fall away, or will have a place at a national level to assist central government targets, however a well drafted legal agreement documenting these schemes should have included provision for the nutrient mitigation land to be utilised for other uses should the law and policy change as suggested by these amendments.

Conversely, environmental bodies and wildlife trusts have reacted very strongly and have questioned the motivation for such political interference which it sees as potentially lowering environmental standards.

There is of course the all important query of the time it takes to enact these amendments given that they need to be debated between the House of Lords and Commons; do housebuilders wait for the law to be passed or do they continue to look for private mitigation solutions in the interim? This will likely be dependent on what stage of development the housebuilders are at and how much certainty they want in the short term. However, the House of Lords have already expressed concern over the number of late (and significant) amendments to the LURB, which suggests that these amendments will create further delay of the LURB through parliament.

4 September will see the next debate come into being, when the House of Lords next consider the LURB and the government will be hoping that they can distinguish themselves from what Einstein had to say on the matter… "Assumptions are made and most assumptions are wrong".

We will be following the progress of the LURB closely and will provide further updates as matters progress.


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