Office for Environmental Protection insists planned nutrient neutrality changes are “regression in law”

Government proposals to change rules on planning and nutrient neutrality amount to “regression in law” and contravene ministerial statements in both houses of Parliament, the Office for Environmental Protection (OEP) has warned.

The dispute between the OEP and Environment Secretary Therese Coffey followed a Government announcement that it will alter rules that have required Natural England to issue guidance to 62 local authorities that new development must be 'nutrient neutral’, which councils have complained has effectively halted housebuilding in the places concerned.

OEP chief executive Dame Glenys Stacey said in a letter to Coffey and Levelling-Up Secretary Michael Gove: “The proposed changes would demonstrably reduce the level of environmental protection provided for in existing environmental law.

“They are a regression. Yet the Government has not adequately explained how, alongside such weakening of environmental law, new policy measures will ensure it still meets its objectives for water quality and protected site condition.”

Dame Glenys said Government proposals would allow “certain environmentally damaging activity to proceed without ‘appropriate assessment’ of certain nutrient impacts, thus risking substantial harm to protected wildlife sites.

“Planning authorities would also be required to disregard negative findings concerning such nutrient pollution in any appropriate assessments, and disregard representations from Natural England or others.”

She said legal controls on the addition of nutrient loads would be replaced with policy interventions that “do not unequivocally secure, for the long-term, the same level of environmental outcome as legal obligations in the regulations do”

Gove had told Parliament: “The Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law.”

But Dame Glenys said the proposed amendments on nutrients “now run counter to these commitments.

“It is therefore important that the Government transparently sets out its position on upholding existing environmental protections,”

She added: “If necessary, ministers should…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.”

Coffey responded: “We expect these amendments to support the delivery of a key government commitment to support home ownership, unlocking 100,000 homes that have the support of local communities but are currently held up due to nutrient neutrality requirements."

She added: “I stand by my pledge that we will not weaken our commitment to the environment”, and went on to say, “nor do I accept that this will lead to regression in environmental outcomes”.

Dame Glenys was though unmoved by this and replied: “What is certain is that the proposed amendments would amount to regression in law.”

Pointing again to what was said in Parliament, she said Government had stated the Bill “will not have the effect of reducing the level of protection provided for by existing environmental law”.

Dame Glenys said: “Should the proposed amendments be adopted and form part of the Bill, this would no longer be accurate.

“It therefore remains our view that, for there to be the transparency and accountability intended by the Environment Act, it will be important to revise these statements should the amendments be adopted.”

A Government spokesperson said in response to the OEP’s second letter: “We’ve always been clear we will never compromise our high standards and we are fully committed to our ambitious and legally binding commitments on the environment. 

“The reforms we’ve set out will see us tackle pollution at source in a way that these legacy laws never addressed through a significant package to restore waterways and leave our environment in a better state than we found it.”

Defra said the “negligible impact of new homes on levels of nutrients” would be offset through doubling to £280m the money Natural England has to mitigate nutrient pollution.

The OEP was set up in 2021 to take over aspects of environmental regulation that rested with the European Commission before Brexit.

Although Dame Glenys was appointed by then Environment Secretary George Eustice the OEP has been keen to stress its independence from Government and ability to hold public bodies to account.

Mark Smulian