The government is facing a legal challenge over plans to permit housebuilders in England to allow sewage pollution “through the back door”.
The campaign group Wild Justice, along with the law firm Leigh Day, have submitted plans for a judicial review over what they term an “unlawful attempt to use guidance to introduce a change that was defeated in the House of Lords last year”.
Currently, in sensitive areas such as the Lake District and Norfolk Broads, housebuilders have to prevent extra sewage going into waterways, either by updating infrastructure or by buying biodiversity credits, which improve the local natural area and counteract the extra pollution. The regulations were first enacted by the EU in an attempt to prevent damaging buildups of algae and other plants that can choke off aquatic life.
Last year, the levelling up secretary, Michael Gove, proposed an amendment to the levelling up and regeneration bill, which would strike the directive from the statute book. This would have allowed developers to ignore the rules.
The bill was twice defeated in the House of Lords after Labour made it clear it would oppose the “reckless” plans.
While the bill finally passed, the amendment did not. Now, the government has been accused of trying to bring it back by stealth by publishing a new notice, which says that planning authorities have to presume that water companies have upgraded sewage infrastructure to improve pollution after 1 April 2030, even if they have not.
Although the notice places a requirement on water companies to put these improvements in place, Wild Justice and Leigh Day argue there is no mechanism for this to be checked, so housebuilders can continue to overload water bodies with pollution after the cut-off date.
Ricardo Gama, a solicitor with Leigh Day, said: “After a huge outcry from environmental groups and a defeat in the House of Lords last year our client thought that the government had quite sensibly given up seeking to remove legal protections for internationally important habitats. The latest notice appears to try to achieve the same thing through the back door.”
The previous amendment similarly said planning authorities would have to assume there would be no sewage pollution implications from new developments, in an attempt to circumvent the EU rules.
The shadow environment secretary, Steve Reed MP, said: “The Conservative government created the housing crisis, then made it worse by scrapping housebuilding targets. To cover up that failure, they are cooking up plans that risk irreparable damage to rivers already awash with toxic sewage.
“Labour is committed to building the homes Britain so desperately needs, while protecting our natural environment. We will speed up the planning process to get spades in the ground and build 1.5m homes over the next parliament while protecting our rivers from pollution.”
A government spokesperson said: “What the changes made in the Levelling Up and Regeneration Act do is enable the designation of areas in which water companies will be required to upgrade wastewater treatment works to reduce nutrient pollution on our waterways by April 2030. These upgrades will reduce pollution at source, delivering environmental benefits, while also helping to unlock the homes communities need by reducing the mitigation burden on development. Any water company failing to deliver upgrades on time will be liable to provide remediation.”