Levelling-up and Regeneration Bill

Earl of Caithness Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

I hope that I have given my noble friend sufficient assurance. However, I will carefully examine the remarks that he made and the questions that he asked. If I have not covered those points sufficiently, I undertake to write him, but I hope that, for now, he will be content for this clause to remain part of the Bill.

[The Earl of Caithness (Con)]

My Lords, maybe it is because it is Thursday afternoon, but I am slightly more confused now than before my noble friend gave his reply. He said that the land would be within the development plan, but he also said that it is an innovative way of identifying land for development. Those two statements do not seem to agree; there is a contradiction. I do not think that my noble friend answered my noble friend Lord Young’s point about the distortions that this can cause to a potential development plan.

It is perhaps true more in the south of England than in the north, where land values are cheaper, but if a landowner gets in cahoots with the local authority and says, “I will sell you my land at X”, knowing very well that his chances of getting planning permission are zero, would that not encourage the local authority to alter the development plan to benefit itself and the community rather than doing planning in the old-fashioned way, which was to develop with a holistic view of the area?

One thing I am not certain about is where local authorities will get the funds from to buy that land, particularly in the expensive south-east. I wonder whether my noble friend can help me on that.

[Earl Howe (Con)]

My Lords, the process will not be as my noble friend has described. The simplest way I can describe this is that community land auctions will be a process of price discovery. In the current system, local planning authorities have to make assumptions about the premium required by a reasonable landowner to release their land for development. For Section 106 agreements, this manifests itself through viability negotiations between the local planning authority and a developer. As these can be negotiated, there is a higher risk that, in effect, higher land prices lead to reduced developer contributions, rather than contributions being fully priced by developers into the amount that they pay for land.

For the community infrastructure levy and the proposed infrastructure levy, a levy rate is set for all development within certain parameters. When setting rates, the local planning authority has to calculate how much value uplift will occur on average, and has to make assumptions about landowner premiums and set a levy rate on that basis. The actual premium required by individual landowners will not be available to local planning authorities and will vary depending on individual circumstances. If the local planning authority makes an inaccurate assumption about landowner premiums, they may either make a lot of sites unviable by setting too high a levy rate, or else they will collect much less than they might have done otherwise by setting too low a levy rate.

Under the CLA process, landowners bid to have their land selected for allocation in an emerging local plan, as I have described, by stating the price at which they would willingly sell their land to the LPA for development. The offer from the landowner, once an option agreement is in place with the LPA, becomes legally binding. The LPA can either exercise it themselves, thereby purchasing the land, or auction it to developers. The competitive nature of CLAs incentivises landowners to reveal the true price at which they would willingly part with their land. If they choose to offer a higher price, they risk another piece of land being allocated for development, in which case they will not secure any value uplift at all.

I do not want to prolong the debate unnecessarily, so I will respond to my noble friend in writing on the other questions I have not covered.

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We have heard a great deal about environmental regression in the Chamber over the last few weeks. The Minister will therefore be aware that this issue is causing concern among your Lordships. This amendment seeks to prevent this from happening. I hope she will agree.

[The Earl of Caithness (Con)]

My Lords, having listened with care to what has been said on these amendments on this important part of the Bill, I will make a couple of comments.

I listened with care to what my noble friend Lord Randall of Uxbridge said on habitats. These are hugely important areas. There are two points that I hope my noble friend on the Front Bench will take into consideration. The first is that land varies very quickly, within a matter of feet in some instances. Although one wants the designation, one also wants the flexibility within that designation to get different solutions where things, and farmers, are slightly different. That flexibility within the overall framework is terribly important.

There is one aspect of the habitats directive that I hope my noble friend will look at in particular. Under the directive as it stands, no experimentation can take place within that area. On upland heather, it is hugely important that we do experiments, strictly controlled, in order to determine which is the best way of managing that fuel load. If we cannot do that within an area subject to the habitats directive—the Game & Wildlife Conservation Trust has had an application to do an experiment turned down by Natural England because the habitats directive will not allow it—we are putting at risk areas within that directive and the wildlife within them. I hope my noble friend will look at that in particular.

I support the noble Baroness, Lady Taylor of Stevenage, on her Amendment 374, but I would wish to make one small alteration to it, if my noble friend were to accept it: it should be “scientific data”, not just “data”. That is hugely important.

I hope that the noble Baroness, Lady Hayman of Ullock, will agree with me on this next point. The definition of environmental protection relates to the level of activity, but what about the level of inactivity? The noble Baroness spoke at length recently, and quite correctly, about flooding, and I spoke about wildfires. Both of those can be caused as much by activity as inactivity, so could my noble friend tell me whether, within her definition, action can be taken where there is no activity, because that also puts wildlife and habitats at threat? I hope my noble friend can answer me on those points.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I am grateful to noble Lords for their thoughtful consideration and hope that, in addressing the points raised, I can demonstrate how the new system of environmental outcomes reports offers a real opportunity to protect the environment.

On Amendment 367, I welcome the support of the noble Baroness, Lady Hayman of Ullock, for the setting of outcomes, but the proposed amendment would have unfortunate consequences. Changing a discretionary power to specify environmental outcomes in regulations to a mandatory requirement would require each regime to set environmental outcomes for every element of the definition of environmental protection.

Perhaps I should add a bit of detail as to how the outcomes will be set. The Government have committed to public consultation to ensure that the public and stakeholders have the opportunity to shape them. Regulations specifying environmental outcomes pursuant to Clause 138 will also be subject to parliamentary debate and scrutiny via the affirmative procedure. We will work across government and with key stakeholders to develop our outcomes, which will cover a range of environmental issues. In addition to the commitments in the 25-year environment plan, other strategies will be considered—for example, the clean air strategy, the UK marine strategy and the Government’s wider environmental targets.

We want to make sure that outcomes are deliverable by developing comprehensive guidance to demonstrate how plans and projects are contributing to the delivery of outcomes. As the current legislation covers a range of assessments with different environmental contexts, it would not be appropriate to require regimes to set outcomes for every area in the definition as not all would be applicable.

Amendment 368 seeks to include social outcomes as part of the EOR framework. As noble Lords will be aware, environmental assessment was originally established to provide an additional level of scrutiny to environmental concerns, which were often overlooked in decision-making on development. This need is greater now than ever before. It is important to remember that EORs sit within wider planning and consenting systems, which include extensive democratic processes, where social considerations are already well represented. Our current consultation includes questions on the role of EORs in considering impacts on local people.

Amendments 368A, 369A, 370 and 371 relate to the definitions of environmental protection and the natural environment. The Government are clear that the definitions in Clause 138, which draw on the definitions in the Environment Act 2021, will allow the Government to consider all matters considered in the existing assessment processes and are capable of capturing the substance of the proposed amendments. For Amendment 368A, the existing definitions already include cultural heritage. For Amendments 369A and 370, the definition of environmental protection includes “protection of people”, which would allow the Secretary of State to consider health-related matters.

Amendments 369A and 372 seek to include climate change in the definition. We are absolutely not relaxed about climate change. Our consultation sets out the challenges of addressing climate change through assessments, and reforming environmental assessment provides us with the unique opportunity to go further for the environment. These reforms allow us to consider the role that environmental assessment should play in addressing crucial issues such as climate change and the challenges of transitioning to net zero. Under the current system, these matters are often dealt with in a reactive, inconsistent and ineffective manner, generating paperwork but not the change we need to see. Additionally, climate change is not a single issue but a network of interconnected considerations. Subsection (3)(c) already includes

“natural systems, cycles and processes”

to ensure that matters such as climate change can be addressed. Many of the indicators to be used in the assessment will also relate to climate change.

Amendment 371 seeks to specify protected sites in the definitions. We are confident the definitions are sufficient to ensure that protected sites will form part of the new system.

I thank the noble Baroness, Lady Taylor of Stevenage, for tabling Amendment 375, and the noble Baroness, Lady Hayman of Ullock, for Amendment 369 on the mitigation hierarchy. For the first time, we have legislated to include the mitigation hierarchy in law. We have brought forward an amendment to bring the hierarchy more in line with current practice.

On Amendment 372A in the name of the noble Lord, Lord Stunell, and Amendment 377 in the name of the noble Baroness, Lady Hayman of Ullock, we recognise the need to maintain the highest environmental standards, which is why we included a clause setting out our commitment to non-regression. The drafting of Clause 142(1) mirrors the provisions of the EU-UK Trade and Cooperation Agreement to ensure that we abide by our previous commitments. We have also included significant duties to consult and given Parliament the opportunity to scrutinise regulations through the affirmative procedure. The Bill requires public consultation and regard to the environmental improvement plan when setting environmental outcomes. They will be subject to parliamentary scrutiny via the affirmative procedure and to our overarching commitment to non-regression, so I hope that my noble friend the Duke of Montrose’s concerns are assuaged.

Amendment 373, in the name of the noble Baroness, Lady Hayman of Ullock, seeks to link EORs to baseline studies. Baseline studies will remain a key means of measuring the effect of development on the environment. Given recent catastrophes, such as bird flu, we intend to modernise the process to meet the challenges of the 21st century. For this reason, we wish to preserve flexibility in how we shape assessment. We will work with experts to agree methodologies and set these out in regulations and guidance.

Amendment 374, in the name of the noble Baroness, Lady Taylor of Stevenage, would limit the power to make regulations on certain processes as these would need to be linked to “available” data. It would also limit the power to make regulations about the gathering of necessary data. This would be contrary to our commitment to non-regression in Clause 142.

On Amendment 378, the 17 UN sustainable development goals are crucially important. However, as the noble Baroness will be aware, the purpose of environmental assessment is to ensure that environmental issues are not overlooked in favour of the social and economic drivers of development activity. We feel it is important to maintain that focus to ensure that environmental issues are not sidelined exactly when they need our attention most.

Amendments 378A and 378B, proposed by my helpful noble friend Lord Lansley, seek to build greater flexibility into the new system. I reassure him that we intend the EOR process to be as streamlined as possible so that it is useful in informing decision-making. Although we indeed recognise the importance of energy security and resilience, it is vital that we fulfil our commitment to non-regression.

On Amendments 379 to 381, tabled by the noble Baroness, Lady Taylor of Stevenage, and Amendment 382 from my noble friend the Duke of Montrose, which mirrors the position in Amendment 181, I assure noble Lords that, in bringing forward environmental outcome reports, the Government are committed to respecting the devolution settlements. We are in discussions with the devolved Governments on how these powers should operate, including extending them to provide a shared framework across the UK. Interoperability between different regimes and competences will be fundamental as we develop our regulations.

On Amendment 383 in the name of the noble Baroness, Lady Taylor of Stevenage, I can confirm that greater accessibility is at the centre of our reform agenda. We want to ensure that everyone is better able to use these reports to understand the impact of development on the environment, including decision-makers. The Government will develop prototypes and templates to make sure that the reporting process is more accessible. These will be tested as part of our commitment to user-centred design.

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[Lord Randall of Uxbridge (Con)]

My Lords, briefly, I join all those who have supported my noble friend’s amendment. I think that if my noble friend the Minister were sitting on the Back Benches he would probably have added his name. We know he has a difficult task but we wish him well in his endeavours.

[The Earl of Caithness (Con)]

My Lords, how sensible it was of my noble friend Lord Trenchard to degroup this amendment from the previous group, which already had 29 amendments in it. This is far too important an issue to be wrapped up in a comprehensive debate.

We should not be in the position of having this debate today. One of the reasons why we are is that the NRA was abolished. When we privatised water—I had the privilege of taking the Bill through this House—we set up the National Rivers Authority. There is nobody better at protecting species or habitat than former poachers, so we put into the National Rivers Authority those who had been in the water authority; one day they were the enemy, and the next they were the best gamekeepers you could possibly have. Under the NRA, there were distinct improvements within the water industry and it was a pity that it got amalgamated into the Environment Agency. It lost its focus and its speciality, and then of course the Environment Agency’s funding was cut.

Having said that, I thank the Government for what they have done. Credit must be given to them: they have a water plan and a storm-water reduction plan, and they have now given powers to Ofwat to consider the environment, which is a huge step forward. They have supported the catchment-based approach and, in particular, they are supporting the national chalk stream restoration group.

We have been in a similar position many times before. There have been lots of reports and discussions, but maybe—just maybe—this time we might get it right. Everybody is on the same page and singing the same song. They are supported by the Government, who have said that the door is slightly ajar. Let us barge through it now and do something for these chalk streams.

The restoration group, as my noble friend Lord Trenchard said, is there to drive progress by government and regulators, water companies, landowners, NGOs, river associations and individuals passionate about their rivers. Are we not lucky still to have people such as Charles Rangeley-Wilson, who is chairing the group and has given hours of his life to chalk streams? The Government must make better use of this input. We are so lucky to have those individuals, and I thank them.

I reiterate what my noble friend said about the one big wish. This amendment is designed to help push that one big wish through into beneficial action for the chalk streams. They are hugely important. I have to admit that they were not important in my life until recently; I was much more concerned about the tumbling rivers in the north of Scotland than chalk streams. But how we manage chalk streams is the litmus test of how the Government are going to handle all the difficulties around improving the environment.

One of the big problems in chalk streams is sewage, which has been in the headlines nearly every day for many months now. We had a “sorry” from the water authorities yesterday on this. If you go to Dorset to walk along the banks of the River Lym, you will see notices saying to keep out, as there is E. coli in the river. That is unacceptable in this day and age but sewage is not the only problem. It will be quite easy, now that the cost-benefit analysis has changed, to put in tertiary sewage works at Evershot and at Toller Porcorum on the upper reaches of the River Frome. That is not a problem.

More of a problem is going to be the septic tanks. A lot of villages, as well as individual cottages, houses and farms, are still within the catchment area of chalk streams and all with septic tanks. Those tanks cause a huge amount of problems, particularly in dry weather. The summer months, when the water flow is low and sewage tanks which are not up to standard are disgorging into the drains or waterways, are the real problem. It is an underestimated problem but it will be a huge one for the Government to have to tackle.

Besides that, the Government will have to tackle us humans in a different way. They have to be prepared to say to us humans: “You cannot fill your swimming pools, you cannot water your gardens or do the abstraction that you did”, as this is only going to be compounded because of climate change. In parts of France—we have not even got to the really hot part of the summer—locals are being told that they cannot do things with water that they have always taken for granted. This is going to be a hugely difficult message to get across, but we need to change our habits for the benefit of the environment. I hope that my noble friend will continue to push on this, but he needs to get the message across that everything being done, which will be costly, is for the environment and we have to adapt to it.

My noble friend will have to take on farmers too. There cannot be, within the catchment areas, fallow fields for much longer. There cannot be maize or salad crops grown, unless there is an immediate crop coming along, because if there is a fallow field you will get run-off and sediment. Noble Lords may have seen the news recently from parts of Italy, where there has just been six months’ rain in one and a half days. The run-off from that has been horrendous. If run-off gets into water—into chalk streams—that causes huge problems. It causes sediment on the base of the stream, which makes it much more difficult for the trout to spawn. If the trout have spawned and you get sediment, you are going to suffocate the eggs. The farmers are another challenge that the Government have to take on.

Another challenge is the highways department, as an awful lot of sediment comes off highways. I see that one particular recommendation from the chalk stream restoration group is about highways, but it alarms me that it has a nasty red cross beside it, where it says there is no action at all yet. Can my noble friend tell me what action he is taking to berate the Department for Transport and local authorities, so that they make arrangements such that the sediment which comes off the roads does not go unfiltered into our precious chalk streams?

There might have to be arguments with those who support beavers. I am a supporter of beavers in the right place, but in most cases beavers and chalk streams do not go together. What the beavers will do will slow down the water, increasing the sediment. It comes back to the problems that sediment causes, which I have just been describing.

Then of course there is water abstraction in its widest sense; I have talked about that a little. The NRA was tackling that hard, and I pay tribute to more individuals: people such as Richard Slocock, who stopped the River Piddle in Dorset being a dried-up bit of river. He worked with the NRA and the Piddle has now become one of our classic chalk streams again. Sir John Betjeman, when he was at Marlborough, was filled with glory by the sight of trout in the River Kennet. When I was at Marlborough, the trout did not have quite the same effect on me. But very close to where Sir John Betjeman was filled with glory, my noble friend Lord Benyon on the Front Bench—Richard Benyon, as he then was as Minister for Agriculture—stood on completely dry land in the middle of that river and later remarked in the House of Commons that the Kennet

“was as dry as the carpet”—[Official Report, Commons, 8/12/11; col. 405.]

that he was then standing on.

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[Baroness Jones of Moulsecoomb (GP)]

Take that back!

[The Earl of Caithness (Con)]

If I were a fisherman on one of the Dorset rivers now with the mayfly hatching, I would have caught a most wonderful trout at the end of my line.

I say to the noble Baroness that I was alarmed, because I know that, in her heart of hearts, she is very supportive of this. However, her boss Keir Starmer said that he wanted to develop on green land. As my noble friend Lord Deben has just said, our chalk streams are going through highly developed land already. Which side of the fence is the Labour Party on? I hope the noble Baroness will reply.

I will ask of both Front Benches the question I was going to ask of my noble friend the Minister. Are they prepared to give the commitment to our chalk streams that the chalk streams demand? To remedy the chalk stream problem, it is not a question of days, months or years, but of decades, and an awful lot of interests have to be tackled. Unless we can get reassurance that all the parties across the House have that commitment, our chalk streams will not be in the health they should be

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support Amendment 372ZA in the name of the noble Viscount, Lord Trenchard, to which I have added my name. The noble Viscount has introduced his amendment and covered the subject fully, and I agree with all his comments.

Many in this Chamber will remember during the passage of the Agriculture and Environment Acts the debates on the importance of chalk streams, so ably led by my late noble friend Lord Chidgey. If he were here, he would certainly be taking part today. No doubt he is looking down from above on our deliberations today and wishing us well.

Chalk streams are a vital environmental resource and should be protected. Those noble Lords who watched David Attenborough on the “Wild Isles” television programme recently will know that 85%—I hope I have remembered that correctly—of the world’s chalk streams are in the UK. That does not mean that, because we have plenty, we can ignore them; quite the opposite. It means we must preserve them at all costs.

A year ago, my husband and I moved from our beloved Somerset to Hampshire, partly to be nearer our family. I have discovered, for the first time, the beauty and tranquillity of the county’s chalk streams—the crystal-clear water, the soft babbling sound of the water running over the riverbed and, often, the bright green watercress growing on the edge of the water and the riverbanks.

However, this idyllic description is not the sight that meets the eye in all parts of the country. Many chalk streams suffer from pollution, as the noble Viscount has said, making the waters discoloured and smelly. There have been numerous questions and debates about the effects of foul-smelling sewage discharging into our waterways. Many chalk streams suffer abstraction on a grand scale and the flow of the river is diminished as a result. As we all know, it is often the rate of flow of a stream that helps to keep its waters clear.

While there is currently a chalk river priority habitat in place which recognises their international rarity and biodiversity, this is not protecting them from sewage discharges. However, the chalk stream strategy also has an important part to play. Today’s announcement by the water companies that they plan to tackle the problem of sewage overflows by 2030 through massive investment in sewer upgrades is to be welcomed, but I fear it may be a little while before this is effective in protecting our precious chalk streams, especially from future development pressures.

Clause 138(c)(e) is the ideal place for this amendment to be added to achieve the desired result we are all looking for. I am extremely grateful to the noble Viscount for raising this vital issue and I hope the Minister will be able to accept this amendment. All speakers have strongly supported this amendment and I agree completely with the comments made by the noble Lord, Lord Deben. Chalk streams are an invaluable asset and must be protected and preserved, so that future generations of children and adults can enjoy them to the full.