4 September 2023

Claims that developers are responsible for water pollution are a load of poo

By Christopher Boyle KC

Raw sewage discharged into rivers and estuaries is, plainly, an emotive issue – but there are plenty of misconceptions that need to be cleared up.

Michael Gove’s announcement of measures to unblock the delivery of housing currently stalled by the issue of ‘nutrient neutrality’ has been greeted by environmental groups and national headlines claiming it will bring further discharges of ‘raw sewage’ into ‘our already polluted rivers’. There was much talk of the ‘polluter pay’ principle, that developers were being ‘let off’, at the cost of the environment and the taxpayer. In fact, it has nothing to do with ‘nutrient neutrality’, the blockage in housing delivery, or Mr Gove’s announcements. 

So what is it all about?

The story starts, not with poo, but with a small bird, called the ‘Dartford Warbler’. Some 20 odd years ago, Natural England [NE] started objecting to housebuilding near EU-protected sites in the Thames Basin. The breeding success of bird species (notably the Dartford Warbler) was considered to suffer from disturbance by dog walkers. A hiatus in housing delivery occurred as planning applications were refused and local plans halted until a solution was found.

Then a solution was found to make the issue go away: developers were to provide ‘Suitable Alternative Green Space’ [or ‘SANG’] – ie large areas of managed countryside given over to public access to divert dog walkers from the EU-protected sites –  and/or a cash payment for long-term management of the protected sites themselves [known as ‘SAMMS’]. 

It may amount to tax unauthorised by Parliament, but that constitutional fly was not allowed to spoil the ointment. The solution was convenient for developers, welcomed by the environmental lobby, satisfied NE and got housing moving again. SANG/SAMMS payments are now commonplace up and down the country anywhere within 14km of an EU-protected site.

‘Nutrient neutrality’ first arose in the Solent area, halting housing from Southampton to Chichester, with NE’s advice effectively amounting to a moratorium on development unless it could be shown not to add to nutrient levels (chiefly nitrogen and phosphorous) in the catchments serving the EU-protected estuarine sites. The issue has now spread to any residential development whose sewage is treated in a Waste Water Treatment Works [‘WWTW’] that discharges into an estuary or catchment judged as suffering from an excess of nutrients, or eutrophication. 

Following the same thought process as led to SANGs (that effectively ‘off-set’ recreational pressure at the developers’ expense), NE devised a ‘solution’. A nutrient-calculating metric establishes the ‘net’ loading from a development and any net increase in N or P is required to be ‘off-set’ – at the developers’ expense – by an equivalent reduction of N or P entering the catchment, usually by taking agricultural land into ‘conservation management’ or to create wetland. That done, NE’s objection goes away. 

Again, like SANG, there is what may be described as ‘an unholy coincidence of interest’ at work here: NE, local planning authorities, wildlife bodies, environmental pressure groups and the farmers who are being paid not to farm all favour the creation of environmental benefit funded by developers. 

The difference between SANGs and ‘nutrient neutrality’ (and ‘water neutrality’) is that finding suitable ‘off-setting’ schemes is a much more intractable problem. Aside from the wider issue of taking our best agricultural land out of production, the problem facing housing delivery is the absence of sufficient ‘off-setting’ schemes that can be utilised to show planning applications as ‘nutrient neutral’. Government estimates the number of dwellings blocked by this problem is between 100,000 and 160,000. I would, anecdotally, put the figure higher, as the hiatus is preventing housing applications from even being made in the first place.

But, what, actually is the problem? 

We start with the EU Habitats Directive, transposed into domestic law by the UK Habitats Regulations. These (amongst other things) place an obligation on local planning authorities not to grant consent for ‘plans or projects’ which are likely to have an adverse effect on European protected sites unless there are overriding reasons of public importance to justify doing so [‘IROPI’ for short]. That, in itself, does not sound very different from the approach to protecting the environment in domestic policy and legislation, but the European Court has interpreted the Habitats Directive in a very stringent manner: ‘likelihood’ of adverse effects must be able to be ‘excluded’ at a level of certainty which is ‘beyond all reasonable scientific doubt’; and IROPI will, for practical purposes, not apply to housing sites as it only operates where there are ‘no alternatives’ – including to develop somewhere else, or not at all. 

Post-Brexit, the existing ECJ interpretation of the Habitats Directive applies to the interpretation of the UK Habitats Regulations. Plainly, post-Brexit there is scope to amend both the terms and interpretation of the UK Regulations by legislation. But, in the case of nutrient neutrality (and water neutrality), a solution lies nearer at hand. 

This is because, unlike dog walkers, the provision of sewage treatment (or potable water supply) is a regulated activity, undertaken by the water authority under the permits issued by the Environment Agency. These bodies are under exactly the same over-arching duties imposed by the Habitats Directive/Regulations to protect European sites. 

The NE’s ‘nutrient calculator’ demonstrates that the significant contribution of N and P from residential development is the assumed outflow from the WWTW that serves it. The nutrient loading of the outflow from the development, itself, is irrelevant, only the volume. This is because the nutrient levels in the WWTW outflow is determined not by what is sent to it, but by what the EA’s permit says can be discharged from it per litre

In simple terms, if one pours one litre of Evian down the pipe to the WWTW, the WWTW will discharge one litre to the river, but now loaded with (the permitted levels of) nutrients. 

To some extent, NE have a point, therefore. But ‘nutrient neutrality’ has alighted on the wrong perpetrator and, hence, the wrong solution. It is the EA’s regulating of the water undertakers which is the proper the focus of scrutiny. If the permitted levels of N and P are too high to ensure protection of the European sites (some old permits do not even regulate them), the EA is under a continuing duty to reduce them, and the water company a duty to increase nutrient-stripping.  

Furthermore, to bring this back to the block on housing delivery, local planning authorities, as is enshrined in national planning policy and guidance and upheld by the Courts, are entitled to assume, in exercising their own statutory functions, that parallel statutory regimes (be it for public health or environmental protection) are operating and will operate in accordance with their duties. 

Government interventions to create wetlands and introduce other measures to alleviate elevated N and P in water courses are to be welcomed in that they assist the EA and the water companies in fulfilling their duties. They are not ‘letting developers off the hook’ and claims that they are going to ‘fill our rivers with poo’, are just that.

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Christopher Boyle KC is a barrister at Landmark Chambers.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.