Do proposed amendments to the Habitats Regulations reduce the current level of environmental protection?
That is the charge made by the Chair of the Office of Environmental Protection [OEP], in a letter dated 30 August to the Secretaries of State for Levelling up, Housing and Communities and for Environment, Food and Rural Affairs. The Chair of the OEP maintained that position in a further letter to the Secretary of State for the Environment, Food and Rural Affairs.
This correspondence was motivated by amendments to the Levelling up, Housing and Regeneration Bill, tabled by Baroness Scott on 29 August, on behalf of the government. It will perhaps raise some eyebrows that the OEP issued its first letter, which was said to be formal advice under s.30 of the Environment Act 2021, within less than 24 hours of the amendments (which run to 26 pages) being published.
The amendments would alter the wording of the Conservation of Habitats and Species Regulations 2017 (SI 2017/490). The critical provision of the amendments, which caused the OEP to write to the promoting ministers, reads as follows:
‘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.’
The OEP claims that ‘[w]hat is certain is that the proposed amendments would amount to regression in the law’, and therefore, that in continuing to promote the Bill, the government is acting ‘… contrary to statements made in each House of Parliament on behalf of the Government under section 20 of the Environment Act 2021‘ – section 20 being the requirement for the Minister promoting a Bill to state whether the Bill will ‘have the effect of reducing the level of environmental protection provided for by any existing environmental law’.
The government amendments to the Bill are intended to address the effects of ‘nutrient neutrality’. The meaning and effect of this phenomena are set out by Sir Ross Cranston in the recent case of CG Fry & Son Ltd v SSLuHC [2023] EWHC 1662 at [2]:
‘In broad terms, this issue relates to the phosphate loading of protected water habitats, leading to eutrophication. This is caused by reasons including agricultural practices and under-investment in water infrastructure. There is a risk of the problem being exacerbated by water generated by new developments which contain phosphates, principally from foul water. The Home Builders Federation states that, due to the unavailability of mitigation options, this issue is holding up the building of no fewer than 44,000 homes in England which already have planning permission.’
There are at least five good reasons why the OEP’s unqualified and rapidly constructed comments are unjustified.
First, the Habitats Directive is outcome (rather than process) focused. The amendments were introduced to Parliament alongside a commitment by the government to invest in waste water upgrades and improved farm management. By far, the greatest contributors to nitrate loading are pollution from dated wastewater infrastructure and agricultural practices (particularly run-off from fertiliser, animal waste and slurry). New residential development accounts for only around 5% of nutrient loading. Addressing the principal causes of the problem in the manner it has set out, enables the government to rationally form the view that the amendments to the Bill, set against that context, will not reduce the current level of environmental protection. Focusing (as the promoting ministers must) on the outcome for the environment, it cannot therefore be said to be ‘certain’ that the proposals would amount to a regression in the level of environmental protection.
Second, the Habitats Directive does not recognise temporary effects as adverse effects. That is relevant because there may be a delay between the amendments coming into effect and the upgrades to the sewage system and improvements to farming practices. That may give rise to temporary adverse effects, as new housing may be permitted in the interim period which may in turn increase nutrient loading in the relevant catchments. However, it is well understood that it is only a ‘permanent’ or ‘long lasting’ effect on the integrity of a European site which is to be regarded as having an adverse impact for the purposes of the Habitats Directive, see the opinion of the Advocate General in Waddenzee [2005] 2 CMLR 31 at [AG35], [AG73], [AG79] and [AG110] also the opinion of the Advocate General in Sweetman [2014] PTSR 1092 at [AG76] and the opinion of the European Court of Justice itself at [40]. Accordingly, it would appear rationally open to the government to conclude that the permanent or long lasting effects of development permitted consequent on the amendment will not be adverse, because the planned improvements to waste water management and farming practices will tackle the problem at source, leading to no overall permanent adverse effect.
Third, the law can differ from the structure of the Habitats Directive provided that, in substance, the level of protection remains the same. The duty under s.20 Environment Act 2021 is not to certify that UK environment law remains exactly as it did during its membership of the EU. Indeed, as s.20(5) makes plain, the form of environmental protection may vary from that provided in the relevant EU Directive. Accordingly, provided the outcome for the environment would be the same (or better), it does not matter that, as the OEP says, the ‘proposed amendments would therefore remove legal controls on the addition of nutrient loads to sites that already suffer from these impacts’. The critical question is whether, overall, the environment is at least as protected as it was before. This is plainly focused on outcomes. Given the current legislation presently does nothing to tackle the major causes of the problem, amending the legislation in the manner proposed together with the proposed investment, could arguably deliver a better solution for the environment than the present system, which only penalises a minority contributor to the problem.
Fourth, the current state of the law does not promote legal certainty. As the Fry case illustrates (above), on the current law, a developer may have obtained planning permission and obtained approval for all reserved matters yet still be prohibited from implementing the permission. The rationale being that a planning authority must refuse to discharge even totally unrelated planning conditions (such as the cycle and network connection in Fry), essentially nullifying the effect of the obtained permission, in order to prevent a development proceeding which is subsequently seen as increasing nutrient loads, even if it was not found to have an adverse effect on the environment at the planning application or reserved matters stages. That is to deliver the opposite of legal certainty and is clearly having a caustic effect on the delivery of new homes (see Fry above) and, in turn, surely investment into housebuilding in the areas affected by the nutrient neutrality issue.
Fifth, the government’s proposal is consistent with the polluter pays and precautionary principles. The government’s proposed approach tackles the major causes of the pollution (i.e. the water management and agricultural practices outlined above). Moreover, given the OEP does not appear to challenge the government’s premise that upgrading sewage treatment works and improving agricultural practices will, if implemented, address the majority of the issue, it is hard to see how the government’s global strategy to this issue is not precautionary.
For those reasons, it is at the very least rationally open to the promoting ministers to continue to certify that the Bill meets the requirements of s.20(3) Environment Act 2021. The position is considerably more nuanced than suggested by the OEP in what may in time be judged to have been a premature and over-confident intervention.
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