Comment

Levelling Up and Regeneration Act: What next for mitigating nutrient impacts?

Following the Government’s defeat in the House of Lords over a proposed change to the law that would have meant housing development could proceed in areas currently affected by nutrient neutrality, we ask what this means for nutrient mitigation going forward?

In the latest twist in this long running saga, the Levelling Up and Regeneration Act (LURA), which officially became law on 26 October, does not include any measures or clauses that would release developers, housebuilders and commercial operators from providing appropriate mitigation from additional nutrient loading on nationally and internationally important river and intertidal habitats.

The proposed amendment had led to a heated divide. It had been generally well received by housebuilder and developers, given the significant numbers of houses still locked in the system until mitigation can be provided (estimated at 145,000 in March this year according to the HBF) and the related loss of investment into the economy from construction and expenditure (estimated at £18 billion by the Government). Equally, many environmental groups were appalled at the disregard this would have for the quality of the water environment and consequent impact on the sensitive ecological habitats. 

Where does this leave us? 

Work through these headlines, and Part 7 of the LURA does include some measures that, if not to fully address the issue, reduce the burden of mitigation on housebuilders and developers, which has been long seen as too heavily weighted on the sector. 

These build on previous Government ministerial statements over recent months, based around requirements for sewage treatment operators to ensure upgrades are delivered:

• Confirming in law a requirement for waste-water treatment works serving more than 2,000 population to meet nitrogen and phosphorus pollution standards on or before 1 April 2030, unless it is specifically listed as exempt by the Secretary of State.
• The ability for the Secretary to State to designate wastewater treatment works serving more then 250 population, but less than 2,000, as requiring upgrades on or before seven years after the plant is designated for requiring upgrades. 
• Defining the expected pollution standards that would be expected for nitrates and phosphates to no more than 10mg/litre and 0.25mg/litre respectively.
• Making it clear that the Environment Agency will be responsible for ensuring these upgrades are implemented, and that failure to meet these requirements could lead to permits being removed. 

The above measures should reduce the average costs of nutrient mitigation in catchment areas where upgrades are required. It is understood a list of treatment works to be upgraded will be published within three months of the Act being made law (i.e., before the beginning of February 2024). There is also a greater level of flexibility in how water companies can reduce nutrient pollution across affected catchments.

In addition, the Government had previously announced, in April 2023, £30 million of further investment and resources into delivering mitigation schemes by way of a Nutrient Mitigation Scheme established by Natural England. However, to date only one affected catchment area (Tees) has been identified. 

Some Local Planning Authorities and developers will be disappointed that there is no lawful requirement to upgrade wastewater treatment works that serve population of less than 2,000. Expect pressure on the Secretary of State to designate further wastewater treatment works serving a smaller catchment between 250 and 2,000 population.

Summary

The requirement to provide nutrient mitigation in affected catchment areas now seems very likely to remain for the foreseeable future. However, the burden on developers and housebuilders should reduce over time as upgrades to wastewater treatment plants are implemented in the short term, and particularly from 2030 - although this will not be a requirement for all wastewater treatment plants.

In addition, now that there is greater certainty of mitigation being needed, third party mitigation schemes by landowners, estates, and local authorities, should continue to come forward, offering greater choice and competition in the marketplace.

For more information please contact Simon Packer. 

13 November 2023