The argument raging down south over pollution from new housing developments is the first big test of the UK Government’s post-Brexit commitment to the environment.
We have already seen proposals to scrap thousands of European regulations. Fortunately this exercise has been slowed down but that it is still not clear what will survive and what will go. Following the Uxbridge by-election we have also seen attacks on clean air schemes which will save many lives.
The latest proposals are a direct threat to one of the fundamental principles which underlie all European environmental legislation. Principles which we were told would be maintained through the Brexit process.
The Polluter Pays principle seems like common sense. Those who creates pollution should fund its clean up. But often this is not how the world really works. Industries can pollute the air, land and water, and even walk away from contamination at former factories. So this principle is an essential safeguard to correct for the failures of our current system.
This is one of the four environmental principles in European law and it has been adopted into both UK and Scottish law. Indeed, the Scottish Government has very recently published guidance on how these principles should operate here.
However, last week, without public consultation, the UK Government opened the floodgates to abandoning the polluter pays principle. It is proposing that local authorities in England will now have to ignore the extra sewage that new housing developments will add to local waterways. Up to now a ‘nutrient neutrality’ rule has been applied, to make sure that no extra nitrate or phosphate are added to the waters downstream of new developments.
Natural England has guidance for vulnerable zones in 62 local authority areas where new developments are required to be nutrient neutral. The classic example in Scotland is Loch Leven, where nutrients from sewage and agriculture ensure the loch is in a poor state, with a major algal bloom last year.
The UK Government called the nutrient neutrality rules ‘defective’ and said that they have held up the building of 100,000 homes. Yet most of those homes have been or are being built thanks to successful negotiations with councils and environment groups.
The new proposals will please the housebuilders but could be a disaster for already-polluted rivers and sensitive ecosystems. Instead of legal protection voluntary contributions from developers may or may not head off problems. If problems do result it will be the public purse which will have to pay for remedial action, not the polluters.
Housing Secretary Michael Gove tried to reassure environmental groups in an emergency meeting at the end of last week by saying that he understood their concerns about the polluter pays principle being overridden and told them that this exemption was ‘narrowly focused’ on the housing sector.
Just three days later an editorial in Farmers Weekly celebrated this weakening of the polluter pays principle, concluding that ‘if housebuilders get a free pass, then so should food producers.’
So far there are no signs that the Scottish Government plans to make similar changes to the law in Scotland, although the pressure from the housebuilding and farming lobbies will be felt just as intensely here.
A version of this article was published in the Scotsman newspaper on 6th September 2023.