Defra faces legal challenge over second bid to relax water pollution rules

Latest attempt by the government to tackle the nutrient neutrality issue has hit a stumbling block.

Wildlife campaign group Wild Justice is challenging a bid by the government to change water pollution rules to permit house-building in sensitive water catchment areas without enforcing measures to protect them from sewage pollution.

Wild Justice says a notice to planning authorities and water companies published on 25th January 2024 is an unlawful attempt to use guidance to introduce a change that was defeated in the House of Lords last year when levelling up Secretary Michael Gove proposed an amendment to the Levelling Up & Regeneration Bill (LURA).

The Lords voted down the amendment after the chair of the Office for Environmental Protection said it would “permit certain environmentally damaging activity to proceed without appropriate assessment”.

Now, the secretary of state at the Department for Environment, Food & Rural Affairs (Defra), Steve Barclay, has published a “Notice of Designation of Sensitive Catchment Areas 2024” by section 96C of the Water Industry Act 1991. The notice requires water companies to upgrade sewage infrastructure to improve pollution control measures for removing nitrogen and phosphorus from discharges into sensitive catchment areas by 1st April 2030. Wild Justice welcomes that bit.

However, the notice also says that planning authorities considering proposals for developments should assume that those pollution control measures will be in place by the deadline of 1st April 2030, even though there is no guarantee that the measures will be in place.

Wild Justice says the notice would have the same effect as some of the LURA amendments defeated in the Lords.

Represented by the law firm Leigh Day, Wild Justice has sent a pre-action protocol letter to the Defra secretary challenging the lawfulness of the notice, signalling the start of the judicial review process.