29 August 2023

The Government is right to reform EU laws that are holding back housing


The Government has today announced that it is reforming EU laws designed to protect ‘nutrient neutrality’, in a move that ministers claim will unblock over 100,000 homes. But unless you are something of a housing policy obsessive, you may not know what this dry sounding directive is. So what is nutrient neutrality? How does it work? Why does it matter? Make yourself an instant expert with this handy guide…

The story starts with the EU Habitats Directive (1992). This set up a Europe-wide regime to protect, and if possible revive, particularly valuable sites and plant/animal species. There are now 658 such Special Areas of Conservation [SACS] across the UK – listed here.

Then, in 2018, came the ‘Dutch case’ (or ‘Dutch N case‘). This was an ECJ ruling which held that grazing cattle or applying fertilisers near such sites could only be done if ‘there is no reasonable scientific doubt as to the absence of adverse effects’.

This had a convulsive effect on Dutch politics. To avoid pollution, housing developments were halted, and farmers were told they’d have to lose half their cows and in some cases close their farms. There have been mass protests, farmer suicides, and the formation of a new populist party.

In Britain, we didn’t get a new political party. But Natural England did write to 74 councils saying they had to halt housebuilding because there was a risk that it would add to pollution near SACS – pausing what the Home Builders Federations estimates is the construction of 145k homes.

While the Dutch ruling was originally about nitrogen (from fertiliser), Natural England have expanded it to include phosphates. It’s also been applied to ‘recreation impacts’ – which, as I wrote in The Sunday Times, means housing can be blocked to protect the countryside from the devastating impact of people walking on footpaths or children building dens.

In North Sussex, the ruling has been applied to water extraction, due to the impact on the rare Little Whirlpool Ramshorn Snail. And there’s been talk about applying it to air quality too.

Now, obviously avoiding pollution is good! Especially to protected sites and species, chalk streams, and so on. But there are problems here. The first is that the ECJ ruling, as we and the Dutch have applied it, gives pretty much zero leeway. Anything that adds to environmental impacts, even fractionally, is out. And the evidence threshold for proving something isn’t going to pollute is incredibly high.

The second is the high-handed way this was done. Rather than mitigation schemes being worked out, Natural England simply ordered people to stop building desperately needed homes that had already been approved, while it got a handle on this thing.

The third is that phosphates are much harder to deal with than nitrogen. The latter is basically tied to fertiliser use. The former requires significant upgrades to sewage systems – the problem here isn’t environmental impacts from construction but, to put it delicately, poos from loos.

So, what’s being done? The key point here, which needs to be repeated again and again, is that no one is simply saying ‘strip away environmental protections and pollute away’. First, that would be hideously unpopular and second, you’d lose the resulting court case in ten seconds flat.

The Levelling Up Bill already contains a duty for wastewater treatment to be upgraded by 2030 to strip out nitrogen and phosphates, and for councils to recognise that when considering new planning applications – which seems very sensible.

And builders are already contributing mitigation funding via various schemes – the point of contention is not that they should be free to pollute, but the high-handed, draconian and counter-productive way the rules were originally imposed. (Having said which, the impacts from new housing really are a very small part of the overall problem, which a legal regime that wasn’t based on zero tolerance/precautionary principle would have been able to recognise.)

So it’s very welcome that the Department for Levelling Up, Housing and Communities has today said that it will do away with this ‘defective’ regulation. A big fund will be established to cover neutrality impacts – more than enough to offset the impact from new housebuilding, which the Government acknowledges is ‘very small’. This should be a vast improvement on the improvised, frustrating hodgepodge we’ve had to date.

So expect headlines about evil Tories planning to destroy the environment, but that’s absolutely not what this is. This is the Government trying to deal with malign consequences of well-intentioned regulation while retaining all necessary protections for conservation sites.

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Robert Colvile is Director of the Centre for Policy Studies and Editor-in-Chief of CapX.

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