Campaign group Wild Justice has accused the UK government of trying to relax pollution rules for housebuilders “through the backdoor”.
Last month, environment secretary Steve Barclay issued a notice requiring water companies to improve pollution control measures for nitrogen and phosphorus discharges from house building in sensitive catchment areas by April 2030.
However, the notice also states that planning authorities considering new developments should assume that those pollution controls will be in place by the deadline, even though there is no guarantee.
Wild Justice claims that this would have the same effect as a proposed amendment to the Levelling Up and Regeneration Bill to scrap ‘nutrient neutrality’ sewage rules, which was defeated in the House of Lords last year.
The campaign group, represented by law firm Leigh Day, has now sent a pre-action protocol letter to Barclay, signalling the start of a judicial review process challenging the lawfulness of the notice.
“After a huge outcry from environmental groups and a defeat in the House of Lords last year, our client thought that the government had quite sensibly given up seeking to remove legal protections for internationally important habitats,” said Leigh Day solicitor Ricardo Gama.
“The latest notice appears to try to achieve the same thing through the backdoor.”
IEMA was among the environmental groups that expressed concern over proposed legal changes to nutrient neutrality requirements for new developments last year.
The professional body said that the proposals would threaten objectives for water quality and the condition of protected wildlife sites, and undermine various government commitments and announcements.
Wild Justice is now challenging the latest notice on four grounds:
Ground one: Unlawfully requiring competent authorities and other local planning authorities to disregard matters which they are required to have regard to in accordance with the Habitats Regulations and planning law generally.
Ground two: By purporting to prohibit competent authorities from considering that a relevant nutrient pollution standard has not been met, the notice unlawfully fetters authorities’ discretion.
Ground three: The notice is made “in accordance with the power in Section 96C” Water Industry Act, but the act does not give the secretary of state power to direct what planning authorities may consider in determining a planning application. Those matters are governed by the Habitats Regulations and planning legislation.
Ground four: The notice has the perverse effect of lowering the level of environmental legal protection afforded to the nutrient sensitive catchments. In that sense, the notice is self-defeating and therefore irrational.
The pre-action protocol letter, issued by Leigh Day, states: “We request that the secretary of state immediately withdraws and revises the notice in order to remove the requirement on competent authorities to assume that nutrient pollution standards will be met.
“If you refuse to take the above steps, or we do not receive a satisfactory response to this letter, we propose to advise our client to make an application for judicial review without further reference to you.”
The letter requests a response by no later than 15 February 2024.
Image credit: Shutterstock
