Nutrient Neutrality – a further update

14 September 2023

Yesterday, 13 September, saw a very interesting debate in the House of Lords on the very late Government amendment that would have forced local authorities, by way of a statutory disregard, to ignore the increase in pollution caused by new housing.

As I am sure many of you are aware the outcome was that the amendment was rejected and just over two weeks of confusion created by Mr Gove has been put to bed (for a while, perhaps) and everyone can resume from where we were before the Government announcement on 29 August.

However, it would a shame if we simply looked at the outcome and did not consider some of the points raised in the debate.  Aside some strong views and, most surprisingly, some unparliamentary language, the debate demonstrated the need for a strong second chamber regardless of your political affiliations.

There are a number of important points to be learned or considered from the debate.  In this short article I have covered only a couple – the first being the importance of getting your evidence right and the second that the importance of the House of Lords has increased substantially since Brexit. 

The Government has presented the fact that housing only generates 5% of the total pollution entering the rivers.  This fact was provided by the House Builders Federation to the Government.  Baroness Willis of Summertown carried out some research into this and made the following observation:

"For the UK, a recent assessment by Greenshank Environmental also indicates a far higher nutrient load in rivers from housing, closer to 36%. I therefore urge other noble Lords not to take this 5% figure too seriously."

I have copied the full extract from her speech below for those that are interested.  I think it is worth reading, especially for those that prepare Expert Reports, as the point she made is that evidence is important and when presenting evidence make sure it can withstand scrutiny.

The second point to consider is that for most us we have been bought up in an environment where European law was supreme.  The UK Parliament retained less and less power as more and more treaties were entered into.  The fact that Parliament would become less important was recognised as early as 1974 by Lord in 1974 in Bulmer v Bollinger, where he famously referred to the incoming tide of what is now EU law, observing that ‘[i]t flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute". 

Following Brexit the flow has been curtailed and the importance of Parliament restored. Lord Deben reminded the House of Lords of its importance.

"I sat through debate after debate on how we were going to protect the British people instead of the court in Brussels and on how we would have proper protection against government mishandling of the environment.  …  That means that the British people are now less protected from government mistakes than any country in the rest of Europe. I make no comment about Brexit, but that is where this House and the other place have left the people of Britain."

What is clear from this contribution is that we are much more reliant on House of Lords than we have been for a couple of generations. 

What is also clear from the numerous debates on the Bill is that farming is going to face increased scrutiny and further pressures.  Farming is not going to get any easier and after the next election we could even face the prospect that certain farming practices will be banned in specific areas – the well-publicised phosphate pollution in the River Wye perhaps being a prime area.  I think we can anticipate a battle between environmental objectives and the need to feed to ourselves and, perish the thought, learning some lessons of the recent impact of Russia's invasion of Ukraine on food security.  This will be an interesting debate but that is for another time.  

Extract from Baroness Willis of Summertown speech yesterday.

"The Home Builders Federation would like us to believe that houses contribute 5% of excess nutrient loads in rivers in England compared with 50% from agricultural activities, so it is all the problem of farmers and not of housebuilders.

I quote from the Home Builders Federation:

“It is estimated that all existing development, including residential, commercial and the rest of the built environment, contributes less than 5% towards the phosphate and nitrate loads in our rivers—meaning the occupants of any new homes built would make a negligible difference”.

But the evidence base is, very strangely, lacking: where does that 5% come from? Searching for it leads me to believe that the figure has been extrapolated from a 2014 Defra report, The Impact of Agriculture on the Water Environment: summary of evidence, which was used to inform the 25-year environment plan. The first thing to note is that this report has since been updated by Defra, and the most recent statistics stand as follows:

"Agriculture is the dominant source of nitrate in water (about 70% of total inputs), with sewage effluent a secondary contributor (25-30%)”— not 5%.

I also looked at other data that could support this level of 5% from the built environment, so I did a search of academic studies that had been published in the peer-reviewed literature in the past three years in similar climatic regions across the world to look at the percentage source of pollution in river catchments that contain a mix of agriculture and urban development. I could not find a single example that suggested a value as low as 5% of the nutrients in rivers coming from housing. One found that, in a large catchment containing seven rivers, 14% of nutrients were from wastewater from residential buildings; in another, it was 33%, and 28% in another. All were significantly higher than the 5% that we have been told is the likely impact. For the UK, a recent assessment by Greenshank Environmental also indicates a far higher nutrient load in rivers from housing, closer to 36%. I therefore urge other noble Lords not to take this 5% figure too seriously."

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