Skip to main content

Shakespeare in LURB: Neutrality losses & contribution questions

Well, that was certainly dramatic....

On 13 September, following a highly charged debate, the House of Lords overwhelmingly voted down the Government's core proposed Nutrient Neutrality amendments.

Whilst the amendments designed to further tighten-up the regulation of water companies passed without comment, the same could not be said for the other proposed changes.

Amendment 247YY, which introduced a wide-ranging power into the bill allowing the secretary of state to amend or change legislation relating to "the effect of nutrients in water that could affect a habitats site connected to a nutrient affected catchment area" was voted down 156 to 203.

The proposed changes to the Habitat Regulations, which would have instructed local planning authorities to ignore the impacts of nutrient pollution from new development during the appropriate assessment process for the vast majority of planning applications, were voted down 161 to 192.

The extent of rebellion seems to have been fuelled as much by the manner in which the amendments were introduced as by their actual content. In speech after speech the government was criticised for the way in which the amendments had been drafted*, for the sheer scale of the Henry 8th provision that had been included, and for introducing the changes at the last minute and with little consultation. 

As the House of Lords report stage is the very last point in which new provisions can be added to prospective legislation, these provisions are now dead. The LURB will continue on without them. If the Government wants to push the changes through, they will either need to start from scratch with new primary legislation or seek another avenue for doing so. One possibility might be an amending statutory instrument changing the Habitat Regulations, which were themselves introduced through secondary legislation - although, this would leave the government vulnerable to a Judicial Review challenge in a way that primary legislation would not.

The big mystery of the evening, however, related to Labour. 

Earlier in the week, an alternative nutrients amendment had been proposed which offered a different, less radical route to addressing the issue.

 The amendment read as follows:

"247YYDA★_ After Clause 160, insert the following new Clause— 

“Nutrient neutrality: further legislation 

(1) Within 120 days of the day on which this Act is passed, the report of a public consultation on proposals to introduce further nutrient neutrality legislation for the purposes of increasing housebuilding without any detrimental impact on the natural environment, must be laid before each House of Parliament. 

(2) The consultation must consider proposals to— 

(a) amend the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012); 

(b) require nutrient neutrality mitigation as a pre-commencement planning condition; 

(c) expedite approval of mitigation credits; 

(d) introduce time-limited and short-term delays in mitigation requirements to planning consent in exchange for strategic mitigation actions by housebuilders; 

(e) determine that affordable housing development in a nutrient affected catchment area constitutes an imperative reason of overriding public interest for the purposes of Regulation 64 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012); 

(f) support the reduction of pollution at source; and 

(g) produce guidance for local planning authorities in relation to Nutrient Management Plans.” 

Whilst this amendment was debated at some length, it was never moved to a vote. No reason was given for this in the House, although the failure to move it did provoke a reaction from the benches. 

If anyone has any insight into why the amendment did not come forward, please do let me know. As I would love to understand the rationale for it.

That said, the nutrient debate in the Lords was not the only thing that happened yesterday. It also saw the launch of a new HBF report tracking the level of unspent s.106 contributions in 171 local planning authorities in England and Wales.

The report found that "From a sample of 171 local councils who provided data following a Freedom of Information request, more than £1.4 billion remains unspent, including over £280 million specifically earmarked to provide much-needed Affordable Housing for local residents. Extrapolating these findings out across local government suggests that almost £2.8bn in contributions from the private sector are unspent."

The data the report is based on did not track when these funds were recieved, so we don't know how long the LPAs in question have had them, but it does highlight an interesting point. Namely, gathering funds for new infrastructure is not the same as actually delivering it.

There are many reasons why s.106 funding may not be spent as quickly as anticipated (or at all):

  • The Council may need to pool the cost of a project across various developments;
  • It may need other sources of funding which haven't arrived yet or have fallen through;
  • They may not have the resources to manage or deliver the project; or
  • Something else might have happened at the Council to hamper delivery (such as a change in political direction or a s.114 notice).

But at least with s.106 funds, most of the money is at least allocated to a specific purpose and there is a fallback in place if it isn't spent.

As I mentioned the other week this is not the case for all developer contributions.

There is no obligation on charging authorities to spend CIL revenues at all, although CIL receipts are at least largely ringfenced for infrastructure funding.

The Infrastructure Levy, if it comes forward, may not even do that. 

The legislation that underpins the proposed Infrastructure Levy, currently enables the government to allow IL receipts to be used for non-infrastructure funding in specific circumstances.

If that proposal were to be taken forward, then depending on how the IL regulations were drafted, it could allow IL receipts to subsidise other council priorities - such as adult social care - instead of delivering any new infrastructure at all.

Now that would definitely be far from ideal....

* from memory, the drafting was described as both 'poor' and 'defective' on more than one occasion.

The government announced plans to scrap these rules through an amendment, or change, to the Levelling Up and Regeneration Bill, currently going through the House of Lords.

Because of the late stage at which the government tried to introduce the change, it cannot try again in the House of Commons now it has been defeated in the Lords.

Ministers would need to bring the proposal forward in a new bill.”