The Office for Environmental Protection (OEP), which is an independent environmental regulator established by the Environment Act 2021 to hold the government accountable after Brexit, has issued a warning about the proposed amendments to the Levelling Up and Regeneration Bill, which aims to improve the housing supply provision in England, as they could reduce environmental protections currently set in law.
Weakening of environmental protections
In a letter addressed to Michael Gove and Therese Coffey, the Secretaries of State for Levelling Up, Housing and Communities and DEFRA respectively, OEP Chair, Dame Glenys Stacey said that the proposed changes to the Bill would "demonstrably reduce the level of environmental protection" and that the new policies presented by the government have not explained how it will meet its objectives for water quality and protected site condition.
The amendments that the government is proposing include changes to the Conservation of Habitats and Species Regulations SI 2017/1012 which would allow certain environmentally damaging activities to proceed without "appropriate assessment" of the impact of nutrients, which could result in a severe impact on protected wildlife sites. The changes would also require planning authorities to disregard negative findings on potential nutrient pollution in any appropriate assessments, which disregard representations from Natural England and other regulators.
According to Dame Glenys Stacey, the changes set out in the Bill would replace legal certainty with policy interventions, which do not unequivocally secure the same level of environmental protection as legal obligations. Additionally, she argues that it is unclear how these measures take account of the polluter pays and precautionary principles, which are the basis of environmental protection and are reflected in the Government's Environmental Principles Policy Statement.
According to the Environmental Improvement Plan published in January this year, the government aims to address nutrient pollution and improve the condition of protected wildlife sites. However, these amendments would greatly undermine these plans, if adopted.
Now, the OEP calls for transparency over the impact of those proposed changes on environmental protections that are present in law. Additionally, the Environment Act 2021 requires Ministers to present to Parliament for debate where a proposed change in legislation would reduce environmental protection. In that case, the Ministers should make a statement to the Parliament and confirm that they are no longer able to say that the Bill would not reduce the level of environmental protection provided for by any existing environmental law, but that the Government nevertheless wishes Parliament to proceed.
DEFRA Response
In her reply to the OEP letter, Terese Coffey assured that there would be "no loss of environmental outcomes through the measures we are taking and we are confident our package of measures will in fact improve the environment". Ms Coffey said that these changes come as a result of "nutrient neutrality issues" brought in by the Retained EU legislation and the ruling by the European Court of Justice imposed on the UK in 2018 - after Brexit, which is "not a longstanding environmental policy or convention" in government's view.
Ms Coffey argues that these extra burdens have blocked housing developments in England, while achieving little to improve water quality.
Additionally, the government has announced £280m of funding for Natural England's Nutrient Mitigation Scheme, more than £200m for slurry management and agricultural innovation in nutrient management, and commitment to further work on Protected Site Strategies in the most affected catchments, to "fully offset the small amount of additional nutrient pollution from development and plot a pathway towards restoration as part of a circular economy for nutrients."
In response to Ms Coffey, Dame Glenys Stacey said that regardless of the government's aim, the proposed amendments still amount to regression of the law and the statements made in Parliament on that Bill, where it "will not have the effect of reducing the level of protection provided for by existing environmental law" will no longer be accurate, if the amendments were adopted.
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