LURB Watch: Government confirms Nitrates' amendments to be tabled in House of Lords shortly

Earlier today DLUHC and DEFRA announced that they will shortly be tabling amendments to the Levelling-Up & Regeneration Bill with a view to easing the impact of Natural England's nutrient neutrality requirements on the housebuilding industry.

The announcement can be found here. 

At the time of writing, the actual amendments have yet to be published.  Although, given that the bill is due back before the House of Lords on 4 September 2023, we probably won't have too long to wait.

From the tone of the announcement, however, it looks as if the overall strategy is to shift from requiring mitigation for each application on an individual basis to a focus on more strategic mitigation schemes - funded through s.106 contributions - in a similar way to that adopted for recreation impact mitigation schemes or SANGS provision in some parts of the country; and tackling pollution at source.

Alongside the announced amendments to the LURB - the Government has set out a package of additional measures that includes:

• An additional £140 million in funding for Natural England's Nutrient Mitigation Scheme, and a promise that it will both be expanded and evolve with a view to ensuring "it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030".
• Committing to further work on developing Protected Sites Strategies in the catchments most impacted by nutrient neutrality and with the most acute housing pressures. 
• a further commitment to the provisions that are already in the LURB which require water companies to upgrade wastewater treatment works that impact areas affected by nutrient neutrality by 2030. 
• A promise to conduct at least 4,000 inspections on farms each year - making sure that slurry and other sources of nutrients are being handled in a way that minimises pollution of the water environment.   
• Announcing £200m in grants for improved slurry storage infrastructure and precision spreading equipment on farms - with a view to reducing run-off from agriculture. This makes a further £166m available for new investment into slurry infrastructure.  
• Investing £25m to drive innovation to help farmers manage plant and soil nutrients and a promise of another consultation this year on modernising fertiliser product standards to drive increased use of organic and recycled nutrients.   
• Introducing from 2024 payment premiums into our environmental land management schemes designed to accelerate take up of certain high priority options, including those that provide benefits for water quality.   
• Publishing a River Wye action plan this Autumn to tackle the unique issues in Herefordshire; and 
• promising yet another consultation this year on new requirements for Sustainable Drainage Solutions as part of new developments to reduce pressure on storm overflows from new homes and flood risk.   

This ties in with the 'call for evidence' that DEFRA published in July, seeking views on whether permitted development rights should be introduced to make it easier to upgrade, of develop new, slurry storage facilities on agricultural holdings; and indeed, whether permitted development rights could be helpful for creating new nutrient mitigation schemes. 

Given the political sensitivity of water pollution issues at present, it is likely that the proposed amendments to the LURB will prove controversial - no matter how they are eventually worded. 

Members of the House of Lords have already expressed concern over the number of significant late amendments to the bill. Indeed, at one of the House's sessions on 11 July 2023, Baroness Pinnock stated that:

"The Levelling-up and Regeneration Bill, which is very important legislation to be considered by this House, is already being brought into a bit of disrepute by the addition of chapters, a new section altogether and amendments. I am sure the Minister feels as uncomfortable as we do about the way that this has been dealt with, but I wish to express my concern, as did the noble Baroness, Lady Hayman of Ullock."

These concerns are unlikely to be allayed by a further set of very significant late amendments to the proposed legislation - which will almost certainly delay the bill's journey through parliament still further. 

The announcement gives rise to a significant number of questions, which have yet to be answered, such as:

• Whether the proposed changes are wholly reliant on the Levelling-up & Regeneration Bill gaining royal assent before they can come forward?
• What will happen to the private nutrient mitigation schemes, which have been set up, or are currently in the course of creation?
• What will this mean for the appeal of C G Fry & Son to the Supreme Court?
• How does this fit with the Government's obligations under the Environment Act and the proposed principles of non-regression contained within the LURB itself?
• Whether this will trigger yet another conservative back-bench rebellion when LURB returns to the commons - albeit from a very different set of back bench MPs this time around? and finally 
• Just how many planning consultations is it possible for a government to run in a single twelve-month period!?!   If we haven't already broken a world record for this in 2023, we must surely be close!

Through an amendment to the Levelling Up and Regeneration Bill, the Government will do away with this red tape and allow for the delivery of more than 100,000 new homes desperately needed by local communities. Thanks to the government’s action, it is expected that developers could begin construction on these homes in a matter of months.

The move comes alongside new environmental measures that will tackle pollution at source and restore habitats. This includes significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030.”