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Rewriting LURB: major amendments proposed at Report stage with rumours of more to come

The Levelling-up & Regeneration Bill enters its Report Stage in the House of Lords on Tuesday (11 July). 

This is one of the later stages the bill needs to pass through before it can achieve Royal Assent. After this,  all that remains is the third reading in the Lords and a period where proposed amendments get considered by both houses of parliament (often called 'ping pong').

In short,  it is really late in the day for the Government to be proposing major changes to the legislation. Nonetheless, this is exactly, what they are about to do.

The marshalled list of amendments published ahead of Tuesday contain a number of really significant government amendments.

These include:

The Infrastructure Levy

  • Allowing councils to opt out of charging the Infrastructure Levy if  they "consider that complying with it would make development of the authority’s area economically unviable". 
  • Clarifying that the references to the funding of affordable 
    housing in the duty to introduce the Infrastructure Levy include funding by means other than infrastructure levy
  • A series of amendments designed to change the duty on charging authorities from "having regard to the desirability of ensuring" that the level of affordable housing funding provided by developers is maintained to having to "seek to ensure" that level can be maintained. 
  • Changes to ensure that councils can the payment of infrastructure levy liabilities through by providing on-site affordable housing (provided that affordable housing is “infrastructure” for the purposes of the levy).
  • Requiring the Secretary of State to report on the impact that the Infrastructure Levy is having on provision of Affordable Housing five years after the Levy is first charged and then requiring him to bring forward regulations to disapply or modify the Levy in areas where it is being found to have a negative impact.
  • Introducing new sentencing limits in relation to criminal offences relating to council's enforcement powers.

Other amendments

  • a series of changes relating to the provision and regulation of childminding services in non-domestic settings;
  • Imposing a new duty on the government to have regard to the role of devolved legislatures and devolved authorities, and to consult devolved authorities, in preparing statements of levelling-up missions. 
  • A series of changes designed to strengthen the role that devolved authorities can play in the delivery of the levelling-up missions
  • An entire new set of scrutiny provisions relating to secondary legislation made under specific parts of the Bill.

The concession that Councils would be able to opt out of the Infrastructure Levy on the viability grounds is extremely significant. Up until this point, the Levy was intended to be mandatory in all circumstances - which was just one of the reasons it has attracted such fierce and surprisingly united criticism from across the development sector.

In addition, over the weekend, the press was full of rumours that yet more amendments to the LURB are on the way.

ENDS and Bloomberg have both reported that the government is considering amending LURB to remove 'nutrient neutrality' restrictions on new developments in affected areas.

The rumours were also picked up by the Sunday Times, who reported them alongside news that Gove is planning to turn Cambridge into the UK's Silicon Valley, as part of a growth plan that is said to include 250,000 extra homes. 

If these reports are accurate, it is a BOLD move. Overriding nutrient neutrality means derogating from, or weakening, the environmental protections contained within by the Habitat Regulations - albeit in a very specific way. 

It would also cut across the principles of non-regression contained within the LURB itself. As clause 147 of the Bill currently reads:

"147 Safeguards: non-regression, international obligations and public engagement 

(1) The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed. 

(2) EOR regulations may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of the environmental impact of relevant plans and relevant consents. 

(3) In exercising functions under this Part, the Secretary of State must seek to ensure that (so far as would not otherwise be the case) arrangements will exist under which the public will be informed of any proposed relevant consent or proposed relevant plan in sufficient detail, and at a sufficiently early stage, to enable adequate public engagement to take place. 

(4) In this section— 

“adequate public engagement” means such engagement with the public, in relation to a proposed relevant consent or proposed relevant plan, as the Secretary of State considers appropriate; 

“environmental law” means environmental law (within the meaning of 20 Part 1 of the Environment Act 2021), whether or not the environmental law is in force. "

Whilst development only makes a tiny contribution to nutrient pollution in our waterways (by far the biggest pollution sources being agriculture and waste water treatment plants), it does still make a contribution.

The Habitats Regulations, as currently legally understood, do not allow councils to grant planning permission for a development if there is any harm caused to Protected Habitat (or even if the possibility of harm can't be ruled out). The extent of the harm doesn't really matter. 

The same principle is behind the imposition of water neutrality requirements in parts of Sussex. In fact water stress looks as if it may become the next major obstacle to development in some parts of the Country, as the Environment Agency has recently objected to several major schemes in Cambridge on this basis. A fact which may prove somewhat inconvenient for Gove's plans to create a new silicon valley in the region.

Regardless of your views on the desirability of this principle, changing it is a *BIG* deal..... and not exactly the type of minor change you would expect in the very final stages of a flagship bill.

It looks as if the LURB maybe a fickle thing after all.

This week, Bloomberg reported claims by sources “familiar with the matter” that prime minister Rishi Sunak’s team is seeking ways to quash the decision made in the Dutch case in a bid to speed up housebuilding.

The outlet claims that Sunak’s team is looking at the Levelling Up and Regeneration Bill (LURB) to do so, however the government would not confirm the claim when asked by ENDS.”