In particular, their enactment is likely to result in changes to existing protection under the Conservation of Habitats and Species Regulations 2017 (the ‘Habitats Regulations 2017’). 

This is the first of two blog posts on this topic. This first post will discuss the LURA 2023 and will be followed by a subsequent post on the relevant provisions of the Energy Act 2023.

Protections under the Habitats Regulations

To understand the nature of the changes to existing habitats protections soon to be implemented by these two Acts of Parliament, it is useful to have regard to the existing position. Regulation 63(1) of the Habitats Regulations 2017 provides as follows:

(1)    A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— 

(a)    is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b)     is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.

In short, where a development is likely to have a significant effect on a European protected site, a competent authority (e.g. a local planning authority) is currently required to make an appropriate assessment of the implications of that development on the features of that site that are intended to be conserved or protected. In light of the conclusions of that assessment, that authority may only agree to the development where it has concluded that it will not “adversely affect the integrity of the European site” (Regulation 63(1)). The only way such a development can proceed notwithstanding a negative assessment is where the competent authority is satisfied that there are no alternative solutions and that the development must be carried out for “imperative reasons of overriding public interest” (Regulation 64(1)). In such cases, the appropriate authority is also required to secure compensatory measures (Regulation 68).

Environmental Outcome Reports

The LURA interacts with the Habitats Regulations 2017 in two main ways. The first is through the new Environmental Outcome Reports regime in Part 6 of the LURA, which will come into force on 26th December 2023 (two months after the Act was passed). [1]  This new form of environmental regulation, as one might expect, seeks to focus on “outcomes”,  a purported contrast to derived EU environmental legislation, for which environmental assessments form a key part. [2] The details of this new regime are due to be included in forthcoming ‘EOR regulations’.

Section 164(2) of the LURA expressly provides the following power in relation to the Habitats Regulations 2017:

“EOR regulations under this section may, in particular, include provision - 
[…] 

(d)    disapplying or otherwise modifying any provision of relevant existing environmental assessment legislation or the relevant Habitats Regulations where preparation of an environmental outcomes report is required under this Part”.

This wide-ranging power to disapply existing habitats protection is qualified by section 156, which includes the following subsection:

(1)    An appropriate authority 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.

There are three points worth noting in relation to the potential effectiveness and enforceability of this safeguard in section 156.
First, by requiring an assessment to be made as to the protection provided by environmental law as a whole, it encourages an assessment of the ‘net’ environmental protection provided: in other words, it permits increases in environmental harm in one area to be balanced against purported environmental benefits in other areas. 

Second, the reference to the “overall level of environmental protection” turns the question into one of judgment, that will not be easy to exercise but equally may be difficult to challenge through the courts. 

Third, to the extent that this provision might be an effective safeguard against non-regression (which is questionable for the reasons set out above), the absence of any requirement for an improvement in environmental protection is of note. If the purpose of environmental outcome regulations is to improve the state of England’s wildlife through the focus on wildlife, one might have expected any modification to existing protection to be justified only where it leads to better protection – particularly where the UK currently ranks as one of the world's most nature-depleted countries. [3] 

Nutrient Pollution Standards 

The second main interaction is through the new nutrient pollution standards in Part 7 of the LURA, which will also come into force on 26th December 2023. [4]  If you followed LURA’s progression through Parliament might recall that the initial proposals in this area were that when making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential development will not adversely affect the relevant site. [5] These proposals received a robust response from the OEP [6] and were rejected by the House of Lords in September 2023. [7]

There remains a question, however, as to how different the provisions that have made it through Parliament will be in practice. 
Schedule 15 of the LURA outlines a set of assumptions to be made in certain circumstances about the new nutrient pollution standards introduced by the LURA as amendments to the Water Industry Act 1991 (‘WIA 1991’). [8] These assumptions come into play for potential developments in England where a competent authority is required to make an appropriate assessment prior to making a “relevant decision” (e.g. the granting of planning permission), [9]  in circumstances where waste water from that development would be handled by a nitrogen or phosphorous significant plant. [10] 

A nitrogen or phosphorous significant plant is a plant in England that discharges treated effluent into a nitrogen or phosphorus sensitive catchment area, provided such a plant is not exempt from the nitrogen or phosphorus nutrient pollution standard (the new standards established by the LURA). [11]  A Secretary of State may designate any habitats site wholly or partly in England as a “nitrogen sensitive catchment area” or “phosphorous sensitive catchment area” if it considers the site to be in an unfavourable condition by virtue of pollution from nitrogen or phosphorous nutrients. [12]

In short, these assumptions apply to habitats sites in an unfavourable condition due to nitrogen or phosphorus nutrient pollution. 

As for the assumptions themselves, when making an appropriate assessment under the Habitats Regulations, the amended regulations require the competent authority to assume that the plant will meet the relevant nutrient pollution standard on and after a defined date. [13]  For plants discharging treated effluent into a “catchment permitting area”, [14]  the relevant date is the “applicable date” (1 April 2030 or the date as specified in any designation). [15] The Secretary of State may designate a sensitive catchment area as a catchment permitting area and, where it does so, the Environment Agency must review the environmental permits for nutrient significant discharging treated effluent into those areas and impose conditions relating to nutrients in treated effluent discharged by those plants. [16]  These can include a condition requiring the concentration of nutrients discharged by the plant to be higher than, lower than or equal to the standard concentration applied to such plants provided such a condition is for the “relevant purpose”. [17] The relevant purpose is that on or after the applicable date, the overall effect of nutrients on the associated habitats site is less significant or the same as the overall effect on the habitats site if the standard concentration applied and the plants were meeting the nutrient pollution standard on or after the applicable. [18]

For plants discharging effluent into sensitive catchment areas other than a catchment permitting area (a “non-catchment permitting area plant”), the relevant date is the “upgrade date” (1 April 2030 or at least 7 years after any designation). [19]

Breaking this down, where previously a decision-maker would be required as part of any appropriate assessment to set out the implications of a development on a protected site in view of what is being conserved on that site, these new assumptions may require the decision-maker to assume that developments in certain areas will meet requisite standards by 2030 and thereafter (if part of the initial wave of designations). In relation to such sites, it may therefore be difficult for a decision-maker to conclude that a development is likely to adversely affect the integrity of the European site. 

There are several interesting quirks arising from the legislation. First, the assumptions only apply where a plant is not designated as an exempt plant (indeed, how can a site be assumed to meet standards which it does not need to meet) and where it has been designated as a nitrogen or phosphorus significant plant (plants in sensitive catchment areas for those nutrients). It follows that if a Secretary of State makes an area exempt from nutrient pollution standards, the appropriate assessment under the Habitats Regulations would appear to operate as normal. This means that whilst the site might avoid enforcement action by the Environment Agency for failing to meet a standard, [20] no favourable assumptions would fall to be made in any appropriate assessment for development in such areas. 

Similarly, in areas which are not designated as sensitive catchment areas – but contain habitats sites in the same condition with nearby water treatment plants – the appropriate assessment under the HRA would appear to operate as normal, i.e. without any such assumptions. If housebuilding in sensitive areas is the aim, there would appear to be an incentive for the Secretary of State to designate areas as a “nitrogen sensitive catchment area” or “phosphorus sensitive catchment area” – since only in such areas can the assumptions ‘bite’.

Further, there remains a question as to how far an assumption can go. The assumptions seem to be predicated upon upgrades taking place by certain dates. However, one might reasonably argue that an assumption is not the same as requiring a decision-maker to close their eyes to contrary evidence. Thus, there is scope for legal argument in this area, particularly if a decision-maker sought to rely on the assumption to arrive at a conclusion contrary to clear evidence.

Conclusion

It is still not clear what effect these new provisions will have on sensitive habitats. The relationship between future EOR Regulations and the Habitats Regulations is yet to be seen. However, for nutrient sensitive sites, the use of “assumptions” in the context of appropriate assessments would appear to reduce (or attempt to reduce) the extent to which such assessments are an assessment of the likely significant effects of a plan or project – and instead require an assumption that standards will be met by a future date. This would appear to turn the precautionary principle on its head – and begs the question as to how different in practice this might be from the original amendment sought by the government. 

Stephanie Bruce-Smith is a barrister at Francis Taylor Building, specialising in planning and environmental law. She has a particular interest in the law on biodiversity and habitat protection.

[1] LURA 2023, section 255(5).
[2] This criticism seems to overlook the fact that to know the likely environmental “outcome” of a plan or project and its acceptability, some sort of detailed assessment would be required.
[3] Biodiversity: UK is one of the world's most nature-depleted countries - BBC Newsround
[4] LURA 2023, Section 255(6)
[5] HL Bill 142-IV(f) (parliament.uk)
[6] Proposed changes to laws on developments will weaken environmental protections, warns OEP | Office for Environmental Protection (theoep.org.uk)
[7] Nutrient neutrality: update - GOV.UK ([url=http://www.gov.uk]http://www.gov.uk[/url])
[8] Schedule 15 is given effect by s.169 LURA 2023.
[9] The term “relevant decision” is defined in the LURA 2023, Schedule 15,  Paragraph 11 in what will become Regulation 85A(4) of the Habitats Regulations. See also Schedule 15, Paragraph 12 in relation to land use planning where similar provisions apply.
[10] LURA 2023, Schedule 15,  Paragraph 11, new Regulation 85A(1)(d) of the Habitats Regulations.
[11] A plant is exempt where it has a capacity of less than a population equivalent of 2,000. The Secretary of State also has the power to make a plant exempt from the nutrient pollution standard – either by designating a specific plant to be exempt (LURA, section 168, new s.96D(1) of the WIA 1991) or by making regulations specifying that certain plants or descriptions of plan are exempt (new s.96D(8) of the WIA 1991).
[12] LURA 2023, s.168, new section 96B(3) and (4) of the WIA 1991.
[13] LURA 2023, schedule 15,  Paragraph 11, new Regulation 85A(2) of the Habitats Regulations.
[14] Referred to as “catchment permitting area plants”. See definition in LURA 2023, Schedule 15, new regulation 85D(1) and (2) of the Habitats Regulations.
[15] LURA 2023, schedule 15,  Paragraph 11, new Regulation 85A(2)(c) and (d) of the Habitats Regulations.
[16] LURA 2023, s.168, new s.96G(1), (2) and (3) of the WIA 1991.
[17] LURA 2023, s.168, new s.96G(5) and (3)(b) of the WIA 1991.
[18] LURA 2023, s.168, new s.96G(4) of the WIA 1991.
[19] LURA 2023, schedule 15,  Paragraph 11, new Regulation 85A(2)(a) and (b) of the Habitats Regulations.
[20] LURA 2023, s. 168, new s.96J(2) of the WIA 1991.