Housebuilders are right to expect better from politicians after nutrients reform failure

A “national disgrace” is how the boss of the Home Builders Federation described the House of Lords defeat for the government over its nutrient neutrality reforms, and you can see why he is upset. Builders say that upwards of 150,000 homes are currently held up in planning by the issue, with local SME builders in affected areas among those hardest hit by a crisis that now has little prospect of abating.

Michael Gove, who tweeted after the defeat that Labour had done “nothing to enable new housing”, appeared to be relishing the opportunity to (for once) show himself to be on the side of the industry, thwarted in his plans to tackle the housing crisis by an opportunist, regressive Labour Party.

But, after this latest failure to find a solution to the own-goal that is the nutrients crisis, developers are right to ask questions of the whole political class, not just the Labour opponents of the reform proposal – given an outcome that was, in the end, both understandable and entirely predictable.

Consensus

The nutrient pollution issue is, actually, one where there has until recently been a fair degree of political consensus. It is actually one on which, on another day, shadow communities secretary Angela Rayner’s offer to work with the government to find a cross-party solution might actually have been accepted. (Offers like that don’t tend to go down so well after you’ve just inflicted a heavy and embarrassing defeat, however)

The issue stems from nitrate and phosphate pollution in watercourses that are protected under the former EU Habitats rules (now part of UK law) – pollution which is largely due to under-treated sewage flushed from existing homes, and farm run-off. However, a 2018 EU court ruling means that councils cannot permit developments which will make pollution worse in these protected areas, even though the impact of new homes is (as the evidence suggests) tiny when compared with the existing problem. This has caused a planning hiatus cutting across 74 local authorities.

While the government has, over the past five years, helped with efforts to set up mitigation systems under which developers can offset their pollution, most – including the Labour Party – agree that the current situation is untenable.

Pretty much everyone also agrees that housebuilders are not the primary or even a significant cause of the pollution. And there is a widespread belief that the proposals brought forward by the housing secretary would have unblocked the current nutrients logjam.

Failure

Given this, why did Gove’s attempt fail? The principal reason was that, after years of relative inaction and – from an industry perspective – government gaslighting on the issue of nutrient neutrality, nothing had been done to prepare the ground for an intervention as radical as the one Gove ultimately attempted.

The government appeared to realise that its amendment was far-reaching, because while it issued a press release stating that it wanted to unblock plans for 100,000 homes held up by “defective EU laws”, the press release said the mechanism for achieving this was by removing the requirement on Natural England to advise councils about nutrients status.

>> See also: How do we stop the nutrient neutrality problem holding up development?

In actual fact the amendment, when it emerged, relied centrally on a much more radical bit of law: a rule that councils should be prevented from concluding that housebuilding contributed to nutrient pollution, even if the evidence showed that it would. Basically that councils “must” (the word in the amendment) ignore reality – or be in breach of this new law.

It allowed Lord Deben, now chair of the Climate Change Committee, to accuse the government of “not being conservative” in this week’s debate. He said: “They are asking local authorities – I can hardly believe it – to disregard the facts […] This is one of the worst pieces of legislation I have ever seen, and I have been around a long time.”

In this context it is much less surprising that the comparatively positive statement that Labour issued in response to the government’s press release –  that the party was prepared to “support effective measures that get Britain building” – changed to outright opposition once the detail of the amendment was analysed.

The government’s argument – and the industry’s in supporting this measure – has been that the proposals announced alongside the amendment, to put further money in the nutrient mitigation fund (£140m extra), and pay farmers to adopt less damaging agricultural practices, among other things, would more than offset any small harm from new housebuilding.

Nothing had been done to prepare the ground for an intervention as radical as the one Gove ultimately attempted.

But however supportive one is of the housebuilders’ case, this is a pretty sticky wicket to be playing on.

Trying to argue that a vague funding promise in a press release – for which the additionality to existing funding is not even clear, and which could be reversed at a moment’s notice – is somehow equivalent to a new piece of law on the statute book, stretches the credulity of even the most sympathetic audience.

Regression

The reality was that, as minor as the impact from housebuilding on nutrients might be, this appeared to most observers as a pretty clear regression from exactly the EU environmental standards that the government had promised many times during the Brexit process and since to uphold. And which, given the growing concern over the state of UK rivers, has only grown more pressing since the Brexit vote.

As respected planning lawyer Simon Ricketts said the day after the amendment was published, “given that the government has committed to no regression from the environmental protections that we enjoyed pre-Brexit, [the government needs to explain] why does this not amount to regression?”

It is not hard to see why various environmental charities accused the government of “lying” over the issue – however much their rhetoric may have overstated the pollution problem from new housing. As such, the violent opposition to the proposals should not have been a surprise to anyone.

Given the level of agreement over the importance of this issue – holding up thousands of new homes and billions of pounds worth of economic activity – and the basic facts at the heart of it, solving the nutrients crisis seems like a job worth doing comprehensively. So why was something that we are suddenly being told by the housing secretary will deliver 100,000 homes just added as an 11th-hour amendment to the bill?

This has been an issue since 2018. Why was is not a core part of the legislation? Given the likely controversy, why did Gove not sit down with the opposition and develop a solution with cross-party support? Why, above all, given its importance, bring this in at third reading in the House of Lords when there was no chance to reintroduce it if it got voted down, as was always entirely likely? This is a question of competent management.

Housing crisis

The reality is that – as a seasoned political operator like Gove well knows – if you are trying to put something through this radical, you have to roll the pitch first. People who might potentially oppose this must be seeded prior to the legislation with the reality of the urgency of the housing crisis and the need for new homes, as well as the limited impact of new homes on pollution.

But quite the opposite: Gove has spent his time as housing secretary antagonising the housebuilding industry, describing it at a meeting as an anticompetitive “cartel” that does not have the nation’s or consumers’ interests at heart, and later prompting a competition inquiry. When MPs have asked to him to drop housing targets, he has proposed watering down planning policy, allowing councils to build fewer homes and effectively downgrading the national mission to build 300,000 homes a year.

It is hardly surprising that fellow parliamentarians are not inclined to look kindly on cuts to environmental rules that will help the very firms that Gove himself clearly has no trust in.

In so many areas, the current government appears inclined to blame others for problems – be it striking doctors, the EU, the BBC or the Labour Party – and appears to forget that it has been running the country for 13 years. Certainly, Labour can be accused of inconsistency and opportunism here, and it is very far from clear that its alternative proposition – using Grampian conditions to allow build work to proceed on development prior to pollution mitigation being put in place – would do anything to help.

But this week’s vote was nevertheless an entirely predictable outcome given the government’s failure over five years to grip the nutrients issue, and one that is causing real distress in the sector.

As such, the government cannot just rail at external “blockers”. It must look to itself to examine what went wrong, before trying to find another way forward. The industry, meanwhile, is right to expect better from the whole political class.

Joey Gardiner, contributing editor, Housing Today