18 September 2023

Does Labour have any answers on water pollution?

By Dr Ashley Bowes

Last week, the government was defeated in the House of Lords, in its attempt to find a way through the nutrient neutrality issue. 

Due to the stage which the Levelling up and Regeneration Bill had reached by the time the government amendment was proposed, the defeat means the amendment cannot now form part of the Bill. The government will therefore need to introduce a new Bill to achieve a legislative amendment to the Habitats Regulations. 

In response to the government amendment, the Labour Party introduced its own amendment to tackle the nutrient neutrality issue. 

The Labour amendment was foreshadowed by an opinion piece in The Times by shadow Levelling up, Housing and Communities ministers, Angela Rayner MP and Steve Reid MP, titled,Plan to ease river pollution rules is reckless and Labour will block it‘. 

But will the Labour amendment achieve its stated aim to, ‘increase[…] housebuilding without any detrimental impact on the natural environment …’? And will Labour’s proposal indeed, build the new homes we desperately need [without] green lighting water pollution‘, as Rayner and Reid claimed in their article?

The Labour amendment envisaged a consultation being conducted and reported back to Parliament. As with the government proposal, the amendment also envisaged amending the Habitats Regulations 2017 as follows: 

    • Require nutrient neutrality mitigation as a pre-commencement condition;
    • Expedite mitigation credits;
    • Introduce delay in provision of mitigation measures in exchange for strategic mitigation actions by housebuilders;
    • Determine that affordable housing development in a nutrient affected catchment area would constitute an imperative reason of overriding public interest;
    • Support the reduction of pollution at source; and
    • Produce guidelines in relation to Nutrient Management Plans. 

The first thing to note is that the Labour amendment acknowledges that it is acceptable to have a short-term adverse effect on the environment (whilst pollution at source is addressed) in order to deliver (at least affordable) housing. To that extent, the Opposition comes to the same essential judgment as the government and, presumably, also considers such an approach would not amount to a regression in environmental protection. 

It is therefore wrong for the shadow Secretaries of State to say, ‘the Conservatives are being thoroughly disingenuous in suggesting that the only way we can build the homes we need in river catchment areas is by weakening environmental law. That is because deeming the provision of affordable housing an ‘imperative reason of overriding public interest’ would do just that, because it would allow planning permission to be granted and homes to be occupied in-spite of an acknowledged adverse effect on the environment. 

However, where the approach of the Opposition differs to that of the government, is scale. The Labour amendment accepted that an effect on the environment could be overridden in the case of affordable housing but did not propose such an exception for general market housing. By contrast, the government amendment would have embraced all forms of housing, presumably reflecting the scale of the housing crisis is not just limited to a need for new affordable homes.

In relation to market housing, the Labour amendment would have simply added to the current c.44,000 units with planning permission which cannot be built. That is because the amendment proposed allowing permission to be granted subject to a condition which prevented commencement until mitigation measures were in place. 

The shadow Secretaries of State were therefore wrong to say the effect of the Labour amendment would, allow developers to start building homes that are stuck in the planning pipeline but would require them to put in place measures to counteract any environmental harm before those homes are occupied‘. The only way that would be true is if the developers started building homes unlawfully in breach of the proposed pre-commencement condition. 

In The Times article (but interestingly not in the tabled amendment), the shadow Secretaries of State also suggest using pre-occupation conditions, whereby homes could be built but not occupied until (as yet largely unavailable) mitigation measures are put in place. This ignores the economic reality of housebuilding: no housebuilder would commit the significant up-front cost building out a scheme without any guarantee the homes could be occupied and the their investment realised. That is perhaps why that suggestion was not in the amendment which was eventually tabled. 

The Labour amendment would not increase housebuilding (because it proposed preventing permissions from being built via a pre-commencement conditions), and it would not deliver affordable housing without any detrimental impact on the environment (because it expressly proposed allowing such development to go ahead in spite of an adverse effect by amending Regulation 64 Habitat Regulations 2017). It is not, and never can be, a credible solution.

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Dr Ashley Bowes is a barrister at Cornerstone Barristers.

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