Nutrient Neutrality: What is happening?

Following the governments proposal to scrap Nutrient Neutrality, it has been announced that the proposed amendments to the Levelling Up and Regeneration Bill (LURB) have been blocked by the House of Lords.

Concerns were raised about the impact these amendments would have on water pollution, further worsening an already significant issue. Additionally, the proposed amendments meant that Local Planning Authorities (LPA) would have to assume that wastewater from developments would NOT adversely affect a habitat site. This assumption would have applied to a vast range of planning decisions.

Baroness Hayman of Ullock, opposing this amendment, states, “we do not agree with the powers being introduced” by the proposed amendments which would mean, “abandoning legal protections for the nation’s most precious and sensitive habitats” as being the only means of meeting housing requirements. Adding that the way in which the Government have introduced these amendments is “entirely inappropriate.” Being proposed at the very last minute together with “excessive regulatory powers” and with no public consultation, which the Baroness states is, “frankly, astounding.”[1] Baroness Scott of Bybrook on the other hand, disagreeing with Baroness Hayman’s proposal, states that, ” What is being proposed instead amounts to dithering and delay—and adds confusion rather than clarity.” Instead, the Baroness emphasises that the additional investments being put into Natural England’s nutrient mitigation schemes, such as, nutrient credits, will ensure that any additional nutrient flow from new housing will be offset.

The Government defeat is not a surprise given that they have tried to significantly amend a Bill at the final reading stage. That was ambitious on any analysis but even more so when the proposed changes included powers to amend any EU or domestic environmental legislation. The Government could try and introduce a standalone Bill to deal with nutrient neutrality, but the question is whether they have enough Parliamentary time to do so before the next general election. There is no ability for the House of Commons to further debate this issue as part of the process of passing the LURB. The House of Commons can only debate amendments from the House of Lords and there were none as the amendment was rejected.

The result restores the status quo with a private market for phosphate and nitrate credits supplying diversified income for farmers and landowners. Existing deals for such credits will proceed although it is notable that all of the transactions that Michelmores are instructed on were unaffected by the Government’s announcement about the LURB amendments on 29 August. The private market for nutrient credits is developing well and will only become more efficient as time goes on. Market forces will establish realistic pricing. Developers and landowners need to collaborate in private deals against a backdrop of Governmental consistency and not uncertainty.

[1] https://hansard.parliament.uk/lords/2023-09-13/debates/4DD90393-6CD9-4F2D-A340-E99C96A8DF62/Levelling-UpAndRegenerationBill