Levelling-up and Regeneration Bill
Wednesday 3rd May 2023
(12 months ago)
Lords ChamberLevelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 84-XII(a) Amendment for Committee (Supplementary to the Twelfth Marshalled List) - (3 May 2023)
Lord Thurlow (CB)
My Lords, I want to make a brief comment on the subject of hope value, following the very interesting observations by a number of Peers. I fear there has been a bit of a misunderstanding about the concept. Market value for property is simply what someone will pay for it, no more and no less. If that happens to include a bit of a bet that there might be an uplift for a change of use or for a planning consent or development, they may take that risk, and they may or may not be rewarded. It is a subjective matter, not something a valuer can readily simply calculate, with the usual variables. It is a risk.
What has not been mentioned in this part of the debate is that the infrastructure levy we are discussing will reduce hope value. The means by which this will occur are simply that when the infrastructure levy arrangements become clearer, the cost of the levy to a developer in that example, which is the one we have been talking a lot about, will be deducted from the price offered for the land—the farmer’s field or whatever it may be. I agree with the noble Lord, Lord Carrington, that it cannot be right to force a sale at something less than the property is worth. It is a fundamental human right, a principle of the rule of law. So, I just want that to be more clearly understood: hope value is not some evil thing; it is a risk and it may or may not be taken by a purchaser.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, Amendment 292, tabled by the noble Lord, Lord Carrington, would place a new statutory duty on all acquiring authorities to act fairly towards anyone involved in the compulsory purchase process and would require the Secretary of State to issue a compulsory purchase code of practice setting out how the statutory duty to act fairly must be discharged by acquiring authorities.
I assure noble Lords that the Government understand the concerns raised on ensuring there is a fair balance between the interests of a body exercising compulsory purchase powers and the person whose interests are being compulsorily acquired. Used properly, compulsory purchase powers can contribute to effective and efficient regeneration, essential infrastructure, the revitalisation of local areas and the promotion of business leading to improvements in quality of life and the levelling up of communities. However, acquiring authorities should only use compulsory purchase powers where there is a compelling case in the public interest and the use of the powers is clearly justified. The justification for a CPO must provide sufficient evidence to demonstrate that the benefits of the compulsory acquisition of land outweigh the harm to any individuals. It is for the acquiring authority in each CPO to determine how best to do this.
The Government’s guidance on compulsory purchase is clear that negotiations should be undertaken by acquiring authorities in parallel with preparing a CPO to build relationships and demonstrate that the concerns of landowners and further claimants are treated with respect. The guidance sets out that a benefit of an acquiring authority undertaking early negotiations is to identify what measures it can take to mitigate the effects of the scheme on landowners. It also requires that, when making and confirming an order, both acquiring and authorising authorities should be sure that the purposes for which the CPO is made justify interfering with the human rights of those with an interest in the land affected. For these reasons, the Government consider the proposed duty is unnecessary. The existing compulsory purchase legislative and policy framework has safeguards in place to protect individual interests and ensure a fair balance is maintained between an acquiring authority and the person whose land is being acquired.
Amendment 410, tabled by the noble Baroness, Lady Taylor of Stevenage, would insert a new subsection into Clause 165 to provide that the Secretary of State may define by regulations the meaning of “regeneration” in new Section 226(1B) of the Town and Country Planning Act—inserted by Clause 165—providing that local authorities have been consulted. I thank the noble Baroness for raising this constructive amendment as it allows me to clarify to the House the reason for the introduction of Clause 165 of the Bill.
Local authorities have a wide range of existing powers to compulsorily acquire land in support of their functions. Clause 165 adds “regeneration” to the planning compulsory purchase power under the Town and Country Planning Act to put it beyond doubt that local authorities can use these powers for development with a clear regeneration benefit. The Government are making it clear through Clause 165 that local authorities’ existing planning compulsory purchase powers for facilitating development, redevelopment and improvement also include regeneration activities. The term regeneration is not specifically defined in legislation to not overly restrict use of the broad planning compulsory purchase power.
However, the Government’s guidance on compulsory purchase indicates how regeneration can be achieved through CPOs: for example, bringing land and buildings back into effective use; encouraging the development of existing and new industry; creating attractive environments; and ensuring that housing and social facilities are available to encourage people to live and work in the area.
The Government believe that setting out in regulations a definition of the meaning of regeneration risks unnecessarily constraining and narrowing use of the planning compulsory purchase power, which could limit its effectiveness for local authorities. This would run contrary to the Government’s objective of encouraging use of CPO powers by local authorities where there is a compelling case in the public interest to bring forward development, including for housing, regeneration and infrastructure. I trust I have given the Committee reassurance that the purpose of Clause 165 is to provide local authorities with suitably broad compulsory purchase powers enabling the delivery of regeneration benefits.
Amendment 411, tabled by the noble Baroness, Lady Bennett of Manor Castle, would insert a new clause which would amend Section 226(1) of the Town and Country Planning Act to extend use of the CPO power under that section to where a local authority wishes to compulsorily acquire land to facilitate the provision of affordable housing or social housing. I thank the noble Baroness for bringing this amendment. As alluded to in my response to the previous amendment, local authorities have a wide range of existing powers to compulsorily acquire land to support their functions, and Clause 165 of the Bill is making it clear that the CPO power under Section 226 of the Town and Country Planning Act may be used for regeneration purposes too.
Use of this extended power by local authorities could, among other things, involve the construction of affordable or social housing forming part of a large-scale regeneration scheme or the reconstruction of buildings to deliver affordable or social housing. Local authorities also have compulsory purchase powers available to them under the Housing Act 1985. These powers may be used to compulsorily acquire land, houses or other properties for the provision of housing accommodation which must achieve a quantitative or qualitative housing gain. This could include, for example, the provision of affordable or social housing.
I hope I have given the Committee reassurance that Clause 165 of the Bill gives local authorities a broader compulsory purchase power which may be used to facilitate affordable or social housing forming part of a regeneration scheme. Also, local authorities already have powers available to them to compulsorily acquire land or properties to support their housing functions.
Amendment 412, tabled by the noble Baroness, Lady Taylor of Stevenage, would insert a new clause which would add a new subsection to Section 226 of the Town and Country Planning Act. I thank the noble Baroness for raising this amendment as again it allows me the opportunity to outline to the House the existing compulsory purchase powers available to local authorities to increase the number of residential properties in their areas. As I have said, under the Housing Act 1985 local authorities have specific compulsory purchase powers which, when used, must achieve a quantitative or qualitative housing gain in their areas. These powers may be used by local authorities to compulsorily acquire land, houses or other properties for the purpose of increasing housing accommodation in their areas.
Under the Town and Country Planning Act, local authorities have further compulsory purchase powers to deliver a range of types of development and infrastructure. Requiring local authorities to deliver replacement and extra housing in addition to the main purpose for the compulsory purchase is likely to increase the costs of providing essential infrastructure and beneficial development. This will discourage the use of compulsory purchase and run contrary to the Government’s objective of encouraging use of CPO powers by local authorities where there is a compelling case in the public interest to bring forward development, including, as I say, for housing, regeneration and infrastructure. I hope I have given the Committee reassurance that local authorities already possess specific compulsory purchase powers for the purpose of increasing the quantity and quality of residential development in their areas.
I move now to the question of whether Clause 174 should stand part. Perhaps I could begin by directing the Committee’s attention to the provisions of Clause 174 in the round, which are in the technical area of compulsory purchase compensation, and to respond to concerns raised by the noble Lord, Lord Carrington. The Land Compensation Act 1961 contains the principal rules for assessing compulsory purchase compensation. Under the current rules, when assessing the open market value of land to be acquired, there are statutory assumptions which must be taken into account. This includes discounting the effect of the compulsory purchase scheme, known as the no-scheme principle. The landlord receives a value for the land which they would have received if the CPO and associated investment had not existed. The Government want to ensure that the improvement of land enabled by a transport project is equally able to benefit from the definition of the scheme under Section 60 of the 1961 Act and the scope of the no- scheme principle, as the regeneration and redevelopment of land currently can. There is no reason why the improvement of land should be excluded from the scope of this definition, and the Government are seeking to achieve this through Clause 174.
Clause 174 amends Section 6D of the 1961 Act by inserting a definition of development which includes redevelopment, regeneration and now the improvement of land. The change further aligns the wording of Section 6D with the amendment the Government are making to local authority CPO planning power under Section 226 of the Town and Country Planning Act 1990, at Clause 165, for English local authorities to use consistent terminology. I understand government officials have met the noble Lord, Lord Carrington, to discuss his concerns with Clause 174, and I hope my explanation of the clause’s purpose has given the Committee reassurance that its focus is on the consistent application of the statutory no-scheme principle to the improvement of land, alongside the redevelopment and regeneration of land.
I move now to the question of whether Clause 175 should stand part. Clause 175 is another clause in the technical area of compulsory purchase compensation. As I outlined in my response to the noble Lord, Lord Carrington, on the previous amendment, the Land Compensation Act 1961 contains the principal rules for assessing compulsory purchase compensation. Under the current rules, when assessing the open market value of land to be acquired, there are statutory assumptions which must be taken into account. Not only does this include discounting the effects of the compulsory purchase scheme, known as the no-scheme principle, but it requires that the planning prospects of the land being acquired must be considered. One method of assessing the planning prospects of land is to establish appropriate alternative development; namely, development which would have got planning permission if the acquisition of the land through compulsory purchase was not happening. Where appropriate alternative development is established, it may be assumed for valuation purposes that planning permission is in force. This is known as the planning certainty, and, assuming the value of the appropriate alternative development is greater than the existing use value, it creates an uplift in the value of the land.
The 1961 Act allows parties concerned with the compulsory purchase to apply to a local planning authority for a certificate to determine whether there is development which, in its opinion, would constitute appropriate alternative development. These certificates, known as CAADs, are used as a tool to establish whether there is an appropriate alternative development on the site, and thus planning certainty for valuation purposes—namely maximum uplift in value attributed to the certainty that development would be acceptable and granted permission in the no-scheme world. Under current rules, there is no requirement to apply for a CAAD to establish planning certainty and secure any resulting uplift in the value of land. The purpose of Clause 175 is to ensure that the compulsory purchase compensation regime does not deliver elevated levels of compensation for prospective planning permissions, which would result in more than a fair value being paid for the land.
The Earl of Caithness (Con)
My Lords, I am grateful for that very full reply from my noble friend, which I will want to read, but a number of points in it concern me. I hope that she will find time for a meeting between now and further stages, because there are some quite serious issues which are unclear.
My noble friend was absolutely right when she spoke about the need for the local authority to build relationships. All I can say to her is that these proposals are shattering relationships. A lot of work will have to be done to try to get them back.
Does a CPO override a conservation covenant? If my noble friend has a conservation covenant on her stud with her horses and the local authority wants to pinch a bit of land with state theft for some affordable houses, who is going to win? Perhaps she might have to write to me on that one. I have some more questions—
Baroness Scott of Bybrook (Con)
I just want to make sure that the Committee knows I own no land and rent no land. Certainly, on a question such as that, I would rather give a written answer to my noble friend.
The Earl of Caithness (Con)
My Lords, my noble friend slightly confused me when she mentioned education, health and affordable housing and then in another sentence said that education, health and affordable housing were the sorts of development which opened the door to other developments coming in. We need to look at that. Can she tell me when we will get all these updates from the Government? Will they be discussed by Parliament? Are we allowed to amend the updates? If the Government come forward with ideas, surely Parliament ought to be able to discuss and amend them.
My noble friend went on to say that it could be more expensive for the local authority in paying hope value, but that does not mean that the scheme is uneconomic. Am I right in thinking that if a local authority thinks that it can get the land by compulsory purchase rather than by negotiation, and for slightly cheaper, it will go for compulsory purchase, rather than negotiation, as a regular way of getting land? These are important issues.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
Does the noble Earl wish to withdraw his amendment?
The Earl of Caithness (Con)
It is not my amendment; it belongs to the noble Lord, Lord Carrington.
Lord Carrington (CB)
I thank the noble Baroness for her extremely comprehensive response to this debate. I suspect that, in an hour or two’s time, we will all be able to complete an examination on this extraordinarily complicated subject. It really is not easy for anybody. I thank the noble Earl, Lord Lytton, for his review from a professional point of view as to what the effects of these amendments might be, and I thank the noble Earl, Lord Caithness, for his extremely useful contribution. I also thank the officials whom we met some three or four weeks ago to discuss the amendments.
However, I want to make the point, which I did right at the beginning—I am sorry for making it again—that there was a consultation process. I am not talking about the Law Commission; I am talking about the consultation with the experts in this industry. The experts came from all sides, including local authorities, landowners and everybody in between. The consultation took place at the same time as the Bill started its progress through both Houses, and the Government’s response arrived last week. I cannot believe that much issue was taken by the Government on any of the points raised during that consultation process.
Our meeting with the officials was largely about that consultation process. We got the result last week. However, we have not really had any proper discussion on what was said in those comments. As I have said before, most of them were somewhat negative or very negative. I would welcome a meeting with the Minister and my colleagues to go through some of those responses in greater detail, because they bring up huge matters of principle in the property industry. In such an important industry, it is very important that there is confidence in how compulsory purchase and property ownership take place, and how we look at hope value, development value, et cetera. All that needs a little bit more work.
I still think that we are using the wrong instrument to crack this issue of hope value. It should be done through the taxation system, whether it is through the community infrastructure levy or Section 108, et cetera. All landowners need to be treated on an equal basis; we cannot have some people being taken out and hung out to dry. I would welcome that meeting. On the basis that we can have it, I beg leave to withdraw my amendment.
“Purposes of green belt landAn area may be identified as green belt land in a development plan for one or more of the following purposes—(a) to check the unrestricted sprawl of large built up areas;(b) to prevent neighbouring towns merging into one another;(c) to assist in safeguarding the countryside from encroachment;(d) to preserve the setting and special character of historic towns;(e) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land;(f) to support climate mitigation and adaptation;(g) to combat the decline of biodiversity and enhance its conservation;(h) to promote natural capital and ecosystem services;(i) to enable the public to access and benefit from green open spaces close to where they live.”Member's explanatory statement
This clause transposes the existing purposes of green belt land from guidance in the National Planning Policy Framework into statute and adds new purposes in regard to climate change, biodiversity, natural capital and public access.
Baroness Young of Old Scone (Lab)
My Lords, I declare my interest as chairman or president or vice- president of a range of environmental organisations. I apologise to the Committee; Sod’s law says that I have three groups in a row, in the evening, before a holiday break, at a time when the huge number of supporters that I had lined up to speak to these amendments, alas, have had to depart.
Amendments 295 and 312E—one in my name and one in the name of my noble friend Lady Hayman of Ullock, and both supported ably, as I am sure we will hear, by the noble Baroness, Lady Willis—are about green belts. A green belt sounds like a thoroughly good thing, and it has been a pretty good thing. It is big—it is nearly 13% of the land surface in England—and it surrounds some of our key towns and cities. It was invented to prevent urban sprawl, which it certainly has done very successfully. It has prevented the sort of ugly ribbon development that you see in other countries, ensured a clarity between what is town and urban and what is country, and safeguarded the rurality of our countryside. The green belt was introduced 70 years ago, but it has not really changed very much or kept up with the times. We need to expect more of that 13% of our land resource, because it is very substantial.
At the moment, 85% of the green belt has no environmental or landscape designation at all. To be honest, the green belt is not very green. Apart from restraining urban sprawl, it is mostly farmland—arable, horticultural or improved grassland—and does not do very much at all to contribute to halting the decline of biodiversity. A recent study on green belt in the north-east showed that only 1.34% of it had public access through rights of way, so it is really not fulfilling some of the Government’s key priorities. For example, it has recently been reported that 8 million households in this country are not able to access green space within a 15-minute walk, which is a recent government target. The green belt would be a huge resource to help fulfil that target, as it would others, such as on biodiversity, human health and the whole range. It is not joined up in any way in policy terms with other government priorities for land use, such as biodiversity net gain, net-zero carbon, local nature recovery strategies, natural flood risk management projects or water protection—I could go on and on. We need to see change in the purpose of the green belt.
The purposes of the green belt are currently not even in statute but simply enshrined as guidance in the National Planning Policy Framework. My amendment would change that: it would transpose the existing purposes of green-belt land and add some new purposes relating to climate change, biodiversity, natural capital and public access. This would join up green-belt policy with other government policies and commitments that exist, for example, not in the Bill but in the levelling up White Paper that preceded it. The concept of ensuring that our land delivers multiple benefits is vital to the future definition of green belt. It is also vital that it focuses planning authorities on the delivery of multiple benefits from all of the land within their plan when they are framing local plans. The green belt is vital to joining up policies at local level as well as national level.
I hope that the Government will address the question of what the green belt is for when they publish their land use framework, which we have been promised for 2023. I have some concern that that might not be the case, since the land use framework is rumoured to focus very much on Defra issues of agriculture, climate change and biodiversity, rather than joining up with DLUHC issues of planning and environmental outcomes. It seems to me that this is a real opportunity now, rather than waiting for anything that might or might not happen in the future, to place clear, multifunctional objectives for green belt in statute, and that that is the safest way forward in the absence of a land use framework.
Baroness Taylor of Stevenage (Lab)
My Lords, I will speak to the amendment submitted in the name of my noble friend Lady Hayman of Ullock, who does not yet have London-style transport in Cumbria and so unfortunately this evening has had to leave to get her last train. I hope she will get there eventually.
Green-belt land makes up nearly 13% of England’s land, as my noble friend Lady Young has said, yet there is no statutory basis or even guidance for the role of green belts in contributing to net zero and environmental targets. This is a major problem, and almost certainly contributes to public confusion about what is green belt, what is a green-field site and what is green space.
Contrary to public perception, the green belt is not protected for the environment. There is no green-belt policy with weight directing or requiring that green-belt land be green or valued for its environmental quality. The laudable fundamental aims and purposes of the green belt designation within the National Planning Policy Framework are focused on protection and separation to keep land open, preventing urban sprawl and regenerating cities, not on the quality of the land itself. With no standard of environmental quality expected, there are many parts of the green belt which are left to deteriorate and become threatened due to “scrappy bits of land” being targeted by developers.
This point was summarised squarely in the report of the House of Lords Land Use in England Committee, which noted that
“policies to improve its beneficial and multifunctional use are lacking. Central to this is the disconnect between planning policy which is responsible for green belt, and the range of emerging policies which seek to improve the benefits we get from nature”.
As my noble friend Lady Young said, there is disconnect between planning policy and all the environmental policies that we are thinking about.
Our green-belt land must work harder. We know that green belts, which make up 13% of our land, are potentially a spatially protected reservoir of natural capital assets and ecosystem services. The green belt’s multifunctional uses and benefits could be enhanced to increase the connectivity of woodlands and hedgerows; to restore wetlands and grasslands; to create new habitats and enhance biodiversity; to clean our air and water; to improve soil quality; to increase sustainable food production; to provide cooling to counter the urban heat island effect; to provide physical and mental health benefits for citizens; to protect our communities from floods and storm surges; to store excess water; to recharge our aquifers; and, crucially, to sequester carbon. In short, there is now a strong case for a more proactive and socially productive role for our green belts.
The existing aims and purposes of the green belt are as crucial as ever but, unless they are widened to include environmental quality—including biodiversity and climate change adaptation and mitigation—and recreational access for public health, green-belt land will have no anchor purpose to give material weight for greening. Nor will it provide an explicit link to the emerging nature policies such as local nature recovery strategies, biodiversity net gain delivery sites, local nature recovery networks and proposed wild-belt designations, which we discussed in our debate on a previous group of amendments.
The Government clearly recognise the importance of greening green-belt land, as referenced in the levelling up White Paper, the Bill before us, the Environment Act 2021, the 25-year environment plan and the Environmental Improvement Plan 2023. This was reinforced in, among other things, the Committee on Climate Change’s recommendations for mitigation and adaptation, the Dasgupta review and the post-2020 global biodiversity framework at COP 15. Public Health England has also identified the role that green spaces, including green belts, play in raising levels of health and well-being, reducing health inequalities and improving social cohesion.
In effect, almost 13% of England’s land could contribute to an integrated and holistic solution to the challenges posed by climate change, urbanisation, human health and biodiversity loss, while also strengthening urban and ecological resilience. Our amendment seeks to establish this. It sets out how, in order for green-belt land to play an integral role in meeting national environmental and health objectives and targets, there needs to be a clear, weighted policy with statutory backing and a new purpose that includes, but is not limited to, environmental quality and access to nature. The “not limited” part ensures that this is in addition to the existing fundamental aims and five purposes, and would not replace them.
The amendment would ensure the consideration and identification of further legislation and policy steps in relation to the green belt. It addresses the key barrier to the Government’s objective to green the green belt, and does so through direct consideration of widening its fundamental aims and purposes with regard to its role in contributing to the national environmental agenda.
To support the implementation of this Bill, my amendment asks a Minister of the Crown to publish a report on the possibility of further legislation to widen the purpose of green-belt land in relation to its environmental quality and access, in addition to strengthening related existing and proposed policy provisions. This can be achieved through secondary legislation. This amendment also seeks to ensure that green-belt land policy aligns with and contributes to the Government’s legislative agenda on net zero and biodiversity. In short, the policy needs teeth through recognition in legislation, national policy and the national development management policies. Ultimately, this will direct local authorities to consider green-belt land as an available and critical resource to use in response to climate change, biodiversity loss and demand for access to nature for recreational and health objectives, beyond the benefits of keeping land open.
This report is important as there are a number of parallel consultations and changes across legislation and policy that all relate to or impact green-belt land. The report would consider the recommendations holistically and avoid some of the contradictory outcomes that we have seen in the past. The Bill’s policy paper recognises the imperative
“to make the Green Belt even greener”.
A first step is recognising that statutory purposes for nature recovery, climate change and access to recreation need to be delivered through legislation, which will be considered and proposed through this report.
The amendment represents an opportunity to provide clarity on what this legislation should look like, such that it can align with and contribute to the Government’s environmental policies, targets and delivery mechanisms to address the climate and biodiversity emergencies. As such, we urge the Minister either to consider accepting it or to look at bringing forward a similar amendment on Report.
Amendment 295, moved by my noble friend Lady Young of Old Scone, would provide the statutory basis needed. As she said, it would transpose the existing purposes of green-belt land from guidance in the NPPF into statute, and would add new purposes with regard to climate change, biodiversity, natural capital and public access. This addition to the current fundamental aims and purposes of the green belt would update it to realise the Government’s agenda for greening green-belt land and enhancing its multifunctional uses and benefits to contribute to the Government meeting their targets and pledges, such as 30 by 30 and the 25-year environment plan. We strongly support my noble friend’s amendment.
Baroness Willis of Summertown (CB)
My Lords, I speak in total support of Amendment 295, moved by the noble Baroness, Lady Young of Old Scone, and Amendment 312E in the name of the noble Baroness, Lady Hayman of Ullock. I want to add a few brief points to theirs, focusing specifically on why these amendments giving protection to the green belt are so important for our nature in England and the UK and for meeting the targets that we have signed up to both nationally and internationally; those were alluded to in the previous two speeches.
Even though green belts were originally designated as a way to keep clear spaces between cities and stop urban sprawl, they have taken on another role. We cannot ignore that fact. They have become incredibly important refuges and corridors for England’s biodiversity and wildlife.
We have heard about the multiple other ecosystem services and natural capital services that green belts provide, so I will not repeat them, but there is one point that I want to make: we are often told that most people have no access to the green belt, so they do not get the physical and mental well-being benefits of it—but they do, because they can see it. Being able to see green and see nature has been shown in some cases to be as physiologically and psychologically important as being in nature. Therefore, being able to have a view of nature from the city is as important as having access. Access is also fantastic, but it is not a reason to do away with the green belt. So while green belts started as one thing, they have changed to provide something else. They have become much broader in this. They have become green spaces that are critical for nature and ecosystem services.
So what is the problem? Why are we all standing here speaking about green space and the green belt? As has been alluded to, green belts are under huge pressure right now. I tried to dig down to understand why they are being put forward for housebuilding; surely the protection we have in place already is enough. Well, it is not, because in the National Planning Policy Framework you are allowed to change the use of green-belt land under exceptional circumstances. Our housing crisis and local authorities’ need to meet housing targets are being used by many counties up and down the country as an exceptional circumstance. That is why there is now so much pressure on the green belt: it is the use of that phrase, “exceptional circumstances”. This is certainly the case in my own city, Oxford, where around 8% of the green belt on the edge of the city is in the local plan but most of our housing development will be on other counties’ green-belt land. We have sort of shifted the problem out from the city boundary.
In a recent report, the countryside charity CPRE beautifully illustrates the trend of increased pressure for housing on the green belt. Between 2015 and 2020, the number of housing units completed on greenfield land within the green belt was around 17,700, but there are currently 260,000 homes proposed in advanced local plans. So, in a matter of three years, we have this massive increase of people looking to the green belt to solve their housing problems.
Lord Lansley (Con)
My Lords, forgive me: I do not have an amendment in this group and I do not want to delay the point when we arrive at my further amendments, but I want to say something about green-belt policy. I am glad to follow the noble Baroness, Lady Willis, because I come from outside Cambridge and she lived in Cambridge, at one time, and now lives now in Oxford, if I am correct. Looking at the green belt by reference to Oxford and Cambridge is an interesting way to approach these things, and I want to do it by reference to the Cambridge green belt in particular.
After the noble Baroness left Cambridge, we lived with precisely the consequences that she described. For 25 years, until about 2000-01, all the development that was required for Cambridge was happening in villages outside Cambridge and generally beyond the green belt. There are many people who will say that it is all very well to talk about reviewing the green belt, looking at green-belt land and whether it should be in or out the green belt, but they are not politicians and they do not have to live with the consequences of reviewing the green belt. Well, I was a politician when we agreed to review the green belt in the run-up to the strategic plan review in 2006, if I remember correctly. Not only did we review the green belt and sustain that through an examination in public, but we successfully reshaped the green belt around Cambridge such that, in the years since, a much larger proportion of the development that is required for Cambridge has happened in the green belt. Some of it has actually delivered access to the countryside that was never available before.
That firmly focused our minds on the purposes of the green belt. For example, we retained green corridors running into Cambridge. Those familiar with Cambridge will realise that, if they come into the centre through Trumpington, they will continue to see countryside reaching right to the centre of Cambridge itself. That was not lost. However, the review acknowledged the requirement for the release of land not primarily for residential purposes but for the purpose of building the Cambridge Biomedical Campus. If we had not reviewed the green belt, the biomedical campus south of Cambridge, around Addenbrooke’s Hospital and what is now Royal Papworth Hospital, and their related research institutes, would not have been able to be built. That would have been an immense loss to the UK economy and life sciences sector.
The point I am making is that understanding when to retain the boundaries of the green belt, when to review them and under what circumstances that review should conclude that the boundaries should be changed is a vital part of planning policy. We should not leave it out. I hope that the noble Baroness, Lady Willis, and other noble Lords remember from other debates that I am firmly of the opinion that this legislation should be used to give a stronger statutory basis to the environmental purposes of planning, including—one of my earlier amendments did this—in respect to nature recovery and biodiversity gain.
However, I should say to the noble Baroness, Lady Young of Old Scone, that I think it is inappropriate to extend green-belt purposes to the features that she has in Amendment 295, because that would create a different statutory basis for planning policy on green-belt land, as opposed to greenfield or any other available land for development. It would entrench the idea that there is something different about green-belt land from other land.
Of course it is permanent, but I remember back in the early 2000s when I asked what permanent meant in relation to the green belt. The answer, I was told, was 25 years. If it is permanent now, we are talking about land that should stay in the green belt until 2050, more or less. That is when we are supposed to achieve net zero—in fact, before then, as our Green colleagues regularly tell us and would tell us now if they were with us. We have to think about the consequences we expect for our land use strategies if we are to achieve net zero between now and 2050.
For example, I have mentioned Cambridge City Council’s environmental assessment before it commenced the review of its local plan. It showed that it requires a significant increase in the density of development in urban areas and development to be focused on public transport corridors. Let us look at where the public transport corridors are, for example around London. I come from Essex: if you go out into the countryside on the Central line, you go through the green belt, but you do so on a public transport corridor on which there is effectively no development. We have to look very carefully and ask whether that is sustainable. The principle of sustainable development is at the heart of planning, and the boundaries of the green belt should be subject to the principle of sustainable development and assessed against the purposes set out in the National Planning Policy Framework.
As I mention the NPPF for the 98th time in these debates, it would be jolly helpful for the Government to tell us what precisely they plan to say in the NPPF and in the national development management policies in future. I come back to chapter 13 of the draft NPPF, which has two parts to it: one is effectively about setting policy for the green belt, which is about setting its boundaries, and the second is about the policies that should apply to the determination of an application for development within the green belt. The latter should be a national development management policy and the former should not: it should continue to be part of what is effectively the overall guidance from the Secretary of State for plan making. My noble friend sent me a letter following a previous debate but did not clarify precisely that division. I think we need to know, as a very clear example of what is or is not an NDMP. It is an important basis for our future debates on Report.
I am sorry that Ministers thought it appropriate to propose a change to the NPPF to include the sentence:
“Green Belt boundaries are not required to be reviewed and altered if this would be the only means of meeting the objectively assessed need for housing over the plan period”.
I do not know why they have inserted it and I do not see the benefit of it. In those local authorities that consist very largely of green belt—and there are some—it will effectively remove from them the obligation to play their part at all in the provision of housing to meet assessed need. I suspect that the same will be true of the requirements for employment and commercial-related development. As I see it, this has no place. Sustainable development should be the principle, and this sentence effectively absolves those local planning authorities of the responsibility to pursue sustainable development in their areas. I hope that, even at this stage, when they look at the responses to the NPPF consultation, Ministers will recognise that this is inappropriate language to use in relation to green-belt boundary setting.
Lord Young of Cookham (Con)
My Lords, this short debate has revealed that tension at the heart of planning policy and, indeed, political debate: what is the relative priority for environmental imperatives on the one hand and for housing on the other? What the noble Baroness, Lady Willis, described as covering land with concrete is, for some people, providing families with decent homes. That is the balance we have to make.
The noble Baroness, Lady Young, opened this debate by asking what the green belt is for. Her amendment outlines nine criteria and purposes for the green belt, and the noble Baroness, Lady Taylor, came up with some more criteria. I turn that question the other way around: if a piece of land meets none of the nine criteria in the amendment or those mentioned by the noble Baroness, Lady Taylor, but happens to be designated as green belt, should it remain designated? I am all in favour of expanding the green belt if it meets these criteria and others, but there are bits of the green belt that fulfil none of them.
My noble friend Lord Lansley referred to the document put out on 22 December on reforms to national planning policy. One of the questions was:
“Do you agree that national policy should make clear that Green Belt does not need to be reviewed or altered when making plans?”.
The answer is that I do not agree. As my noble friend said, that gives a let-out, but it also prevents the optimum use of land that is needed for housing.
I hope that, if we do come up with positive policies and descriptions of the objectives to be fulfilled by the green belt, we will look very critically at bits of the green belt that do not meet those criteria. There have been award-winning housing schemes built on what were green belts. We may need more of them if we are to hit our target of 300,000 homes a year. Along with my noble friend Lord Lansley, I think that there are other considerations to take into account when striking the appropriate balance between the environment on one hand and the need for decent homes on the other.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, the noble Baroness, Lady Young of Old Scone, has introduced these two amendments very clearly. I will be brief.
The green belt is seen by most of the population as an excellent example of green space in which to relax and enjoy the fresh air, and a place where they can, if they are quiet and careful, spot some of our indigenous wildlife. As the noble Baroness, Lady Willis of Summertown, said, just the sight of green space is good for us. However, all is not well with the green belt. The percentage of green belt in England that also has a statutory nature designation, such as SSSI, SPA/SAC, LNR or NNR is only 5.44%; the percentage that also has a statutory landscape designation, an AONB in England, is 9.26%; and the percentage of the green-belt land in England without either statutory landscape or nature designation is 86.67%. This last figure takes account of the same areas with both landscape and nature designations. It is easily seen that little of the green belt has any real protection. I am grateful to Wildlife and Countryside Link for this information.
The green belt should be a community asset. It has been enjoyed for generations. During my childhood I lived in Bristol, on a new housing estate erected in haste to replace those dwellings bombed during the war, when there was a desperate need for new housing. Our back garden ran up to the edge of the green belt, as did the gardens of our neighbours. In Bristol as children, we could play games, have impromptu picnics, play hide and seek and build dens in the scrub woodland that went around the corner and covered a quarter of the area. In the winter, we could take our tin trays and toboggan down the snowy slopes. In summer, there would be bees buzzing around the clover flowers, slow-worms on the edges of the scrub woodland and mice scuttling around under the bushes; birds would steal blackberries in the autumn. The green belt is an asset that needs to be preserved for future generations of children to enjoy in both inner-city and rural areas, and to increase biodiversity, as the noble Baroness, Lady Willis, said.
Amendment 295 comprehensively defines the purpose of green belts. I will not detain the Committee by repeating the list, with which I completely agree. Where green belts are preserved and accessible to local communities, they improve the physical and mental health of those communities. Amendment 312E in the name of the noble Baroness, Lady Hayman of Ullock, and introduced by the noble Baroness, Lady Taylor of Stevenage, requires the Secretary of State to report on legislation in relation to green-belt land and to lay this report before Parliament. The noble Baroness, Lady Willis of Summertown, has spoken eloquently on this especially important amendment, and I support her comments and the aims and ethos of Amendment 312E.
I accept completely that there are competing needs on green-belt land around cities, but we need to find different ways of preserving the green belt and providing housing. Not all housing should be in the cities: as many people will know, I have long been an advocate of a rural strategy that makes absolutely certain that there is organic growth of housing in rural areas. That said, the noble Lord, Lord Lansley, has given some excellent examples of the benefits of reviewing the green belt. The green belt and the widening of its objectives are important and should be brought into statute and given teeth, as has been said.
Earl Howe (Con)
My Lords, it is a pleasure to respond to the noble Baroness, Lady Young of Old Scone. She and I go back a long way to the days when I was a Minister in MAFF and she was chief executive of the RSPB. A photograph of a stone curlew used to sit on my ministerial desk. I pay tribute to her as a staunch defender of the natural environment over many years, including in her current role as chair of the Woodland Trust.
I turn to her Amendment 295, alongside Amendment 312E in the name of the noble Baroness, Lady Hayman of Ullock. Amendment 295 seeks to transpose the existing purposes of green belt land from the National Planning Policy Framework into statute. It would also add new purposes in regard to climate change, biodiversity, natural capital and public access. Amendment 312E seeks to probe the possibility of introducing legislation in relation to the green belt.
Although I entirely understand the sentiment behind these amendments, the government view is that these matters are best dealt with in national planning policy rather than legislation. National planning policy already sets out the purposes of the green belt. Such land is vital for preventing urban sprawl and encroachment on valued countryside, while enabling towns and cities to grow sustainably. National planning policy includes strong protections to safeguard this important land for future generations and these protections are to remain firmly in place.
For example, national policy is already clear that the green belt can and should support public access and that opportunities for greening should be taken. The noble Baroness, Lady Willis of Summertown, mentioned that there is already provision to say that a local authority should not propose to alter a green belt boundary unless there are exceptional circumstances and it can show, at examination of the local plan, that it has explored every other reasonable option. That, I suggest, is a strong protection.
Another example is our recent consultation on reforms to the National Planning Policy Framework. We proposed new wording on green belt boundary policy, as mentioned by my noble friend Lord Lansley. Our proposed changes are intended to make clear that green belt boundaries are not required to be reviewed and altered if this would be the only means of meeting objectively assessed housing need over the plan period. We are currently analysing consultation responses. He questioned the utility of that change. My understanding is that in the current wording of the framework there is a straightforward permissive power for local authorities with regard to green belt boundaries. The wording is not slanted either way. We think it could be beneficial to slant it in the way the consultation proposes. I do not agree that it would absolve local authorities from achieving sustainable development.
Incidentally, my noble friend Lord Lansley asked about the existing boundaries within the definition of national development management policy. We have been clear about what aspects of current policy would be a national development management policy. The decision-making parts of current policy, such as that on the green belt, would form the basis of NDMPs. The Government have also committed to consulting on amendments to national planning policy to reflect the commitment in the levelling up White Paper to bring forward measures to green the green belt, so that it can better fulfil its potential as land of scenic, biodiversity and recreational value, as well as checking urban sprawl.
Some powerful points have been made in this debate, not least by the noble Baronesses, Lady Young of Old Scone, Lady Taylor and Lady Willis of Summertown, about the green potential of green belt. We are working with Defra, Natural England and others to consider how local nature recovery strategies can benefit green belt and other greenfield land to improve people’s access and connection to nature, and to maintain and restore habitat, wildlife populations and woodland. All this is work in progress and I do not want to pre-empt the outcome of our consultation on the detail of the green belt policy in the framework.
I appreciate that the noble Baroness, Lady Young, was hoping for greater certainty at this point, or at least the prospect of it; however, I cannot provide that today for the reasons I have given. Nevertheless, I hope that what I have said will give her enough reassurance that the Government are committed to consulting on giving the green belt a greener purpose and that she will be content to withdraw her amendment on that basis. Equally, I hope that the noble Baroness, Lady Taylor, will not move her amendment when we reach it.
Baroness Young of Old Scone (Lab)
I thank all noble Lords who have spoken in this important debate. At least, I think I thank them all. There are one or two I probably do not agree with. The noble Lords, Lord Lansley and Lord Young of Cookham, amply showed how the polarisation argument about green belt is quite corrosive. It cannot be either/or; it has to be both. We have very little land in this country and we are asking more and more of it, so we have to find ways to meet all the needs for land effectively. That is the subject of another amendment that I have tabled to the Bill. In particular, I hope I misunderstood the noble Lord, Lord Young of Cookham, who seemed to imply that if green belt did not meet the broader criteria, other than just urban sprawl reduction, that was a good reason for building on it. In my view, we should be asking: how do we get this land, which is primarily for the purpose of restraining urban sprawl, also to do other things while it is at it?
Lord Young of Cookham (Con)
I hope I did not give that impression. I made it clear that as long as land met one of the nine objectives, of which protecting against urban sprawl is only one, in my view it should be green belt. My point was that if it met none of them, what was it doing being classified as green belt?
Baroness Young of Old Scone (Lab)
I thank the noble Lord for that clarification. I hope that there are not huge numbers of pieces of green belt that do not meet at least the urban sprawl criterion. I very much look forward to the work that the noble Lord, Earl Howe, outlined. We do go back a long way. On one notable occasion, on the eve of the 1997 election, he saved my bacon comprehensively and I shall say no more about that right now. He knows what I am talking about.
I disagree with him that we should not see the required provisions in statute rather than just in planning guidance, but I hope that the NPPF consultation inclines in the direction of boundary review, just not only for the purpose of meeting housing targets. The boundary review should be an exception rather than an opportunity.
I very much appreciate that Defra and DLUHC are working together on how we link green belt provision with access, biodiversity and woodland creation. It is a pity that we cannot get further information about that now and I hope we might see more before Report. I commend the two departments for working these issues out together because there has been inadequate linkage between them on some of these issues in the past. I suppose that what I am taking from the Minister is that there is some hope for jam tomorrow. In the meantime, I beg leave to withdraw my amendment.
“Tree preservation order: penalty for non-compliance(1) Section 210 of TCPA 1990 (penalties for non-compliance with tree preservation order regulations) is amended as follows.(2) In subsection (1)(b), omit “in such a manner as to be likely to destroy it”.(3) In subsection (3), at the end insert “and the likelihood that the action will destroy a tree”.(4) After subsection (3) insert—“(3A) Subsections (1) to (3) do not apply in relation to Wales.”(5) Omit subsection (4).”Member’s explanatory statement
This amendment creates a single offence for the breach of a Tree Preservation Order to ensure all fines are commensurate with the potential profits of contravention.
Baroness Young of Old Scone (Lab)
We have reached what the Times once described as the “End of the peer show” show. I rise to speak to Amendments 296, 297, 298, 299 and 301, which are tabled in my name. I am grateful for the support of my noble friend Lady Hayman of Ullock and the noble Baroness, Lady Bennett of Manor Castle, who have co-signed the amendments. The amendments are all to do with tree protection orders, which are one of the few legal tools to protect important woods and trees, particularly with a stress on individual trees. Local planning authorities can use TPOs to protect what are known as amenity trees where they believe that it is expedient to do so. The provision was established 70 years ago, but it has some weaknesses and I think that it is true to say that the vast majority of our ancient and veteran trees have no real legal protection at the moment.
Trees outside woods provide valuable ecosystem services for people and habitats for wildlife. A single oak can support more than 2,300 species, some of them found only on oak trees. Many important trees—ancient and veteran trees—are in urban or semi-urban areas and three-quarters of them are outside legally protected wildlife sites. The system is not working because over the past 150 years 50% of large trees have been lost from, for example, eastern England due to urbanisation, agricultural intensification and, increasingly, tree disease.
Local communities often care very much about trees that are local to them. They may not be special trees in the scheme of things—they may not be ancient, veteran, rare or hugely important—but they are important to local people in local terms. The problem is that, in the absence of real protection through TPO processes, all that local people can do is mount public campaigns and literally stand in the way of the felling of some of these trees. Noble Lords will have seen in the newspapers the causes célèbres—Sheffield and Plymouth—where valuable mature street trees have bitten the dust. That shows that if local people can only campaign in the face of inappropriate felling, they do not often win.
A recent case in Wellingborough illustrates what often happens. In March, more than 50 lime trees were approved to be cut down for a dual carriageway, despite being protected by tree protection orders, and 20 of them were chopped before local people even knew about the proposals. They then took action, the felling was paused and there will now be a period of consultation, which should have happened first. It should not be like this, so we need to do something about the TPO legislation.
Amendment 296 is about penalties for non-compliance with TPOs and supports their enforcement. It would create a single offence for the breach of a TPO to bring fines into line with the potential profits of contravention, so that it is no longer simply regarded as a legitimate business expense to flout a TPO, which in many cases is how folk who cut down trees inappropriately regard it. It would align the penalties with those in similar situations, such as in the protection of ancient buildings. It also addresses a key issue in the present legislation, which is that is it not always possible to prove at the time of a prosecution that an action is likely to destroy the tree, which is one of the criteria for a successful prosecution. If you are not facing dead trees felled on the ground but are trying to stop inappropriate felling, it is not always possible to show that the planned action is likely to destroy the tree.
Amendment 297 is on the definition of “amenity”, which is the basis on which TPOs can be proposed. The Court of Appeal has defined this very narrowly as the pleasantness or attractiveness of a place, but after 70 years the definition of amenity needs to change to encompass a wider range of benefits, much as the definition of green belt needs to change to encompass a wider range of benefits. There are distressingly frequent occasions where planning authorities or, indeed, planning inspectors define visual amenity as the only justification for the observance of a TPO, yet other planning authorities are much more innovative and use a range of factors beyond visual amenity in deciding to protect trees through TPOs. Amendment 297 aims to standardise this and make it more common for local authorities across the board to ensure that issues other than simply the pleasantness and attractiveness of a place come into play. The appearance, age or rarity of the tree, its importance for biodiversity and its history, the science behind it all and its recreation and social value should be included in the amenity definition.
I am sure that the Minister will tell me that Amendment 298 is unnecessary because this is already possible, but it would underline for local authorities that the power to create TPOs can be exercised more generally in the public interest. Although some local planning authorities are proactive about protecting trees that are important for communities, too often trees are protected only when they are threatened by development rather than in a strategic way that takes account of how those trees contribute to the community setting. Amendment 298 would empower and, I hope, encourage local authorities to apply TPOs more proactively to ensure that important trees are protected.
My local authority, which I rarely compliment, has a proactive approach to TPO creation. Our tiny village of 35 houses has, I think, the biggest density of TPOs in the universe, because we are a distinctive, remote, tree-covered village in the north Bedfordshire Wolds, a wold being a rolling tree-covered hill, and there are not many hills or tree-covers in Bedfordshire. In the 1980s, the local authority had the vision to go around slapping TPOs on practically everything, including some very ordinary and scruffy trees, if I may say so, but it has meant that our village has preserved its important historic and visual resource of the trees that make that landscape and the community what they are. I hope that Amendment 298 would encourage more local authorities to think in that strategic and innovative fashion.
Amendment 299 would remove the exemption that prevents dead and dying trees and dead branches from being eligible for protection by TPOs. Dead wood is one of the most important biodiversity habitats provided by ancient and veteran trees. The retention of a range of deadwood habitats is vital to support the good management of these trees. I saw a wonderful example in Greenwich Park—I am sure noble Lords want to hear about Greenwich Park at this time of night. An ancient yew tree was so on its last legs that it fell apart in the middle and lay there. Greenwich Park had the foresight not to remove bits of it but just left it. The dead branches formed great wildlife habitats but, even more, a habitat within which a new yew tree grew from the centre. That is what we should be seeing from our dead wood. At the moment, the minute a bit dies, it is exempted from the TPO and can be chopped off and taken away, so we want to see Amendment 299 change that. Obviously we have to be careful about circumstances where dead and dying trees are likely to be a danger to the public, but I am sure that that can be done through guidance.
Lastly, Amendment 301 would introduce a duty to consult publicly prior to the revocation of a TPO. At the moment a local authority is required to consult before it designates a TPO, but it can take that designation away the following day without so much as a cheep to the public. It does not have to give a reason and there does not have to be any transparent process for revoking a TPO. You can understand the public’s concern if the first they know about a withdrawal of protection is the chainsaws moving in. The amendment asks for there to be a similar, publicly transparent consultation process for the revocation of a TPO.
I hope that the Minister might look kindly on TPO designation being tightened up. TPOs are really important for local people, for trees, for biodiversity, for our heritage and culture, and for communities, and they could just be that little bit better with these minor tweaks. I hope the Minister can support them.
Baroness Taylor of Stevenage (Lab)
My Lords, I support the amendments tabled by my noble friend Lady Young of Old Scone. Anyone who has been a councillor will know only too well the passion and emotion in both directions that arise from trees. I still bear the scars from a public meeting where there was a discussion between the council tree surgeon—he has long since retired so I can talk about him—and a resident of my ward. The resident was insistent that the council had the wrong types of trees in the streets and that that was causing all sorts of problems. He went on and on about street trees and how we should not have put forest trees in streets. The tree surgeon listened to him for quite a long time as he got very irate, and eventually turned round and said, “Well, when you think about it, Len, all trees are forest trees initially”, which took a bit of the sting out of it.
I often feel that the world is divided into those who love trees and want them everywhere and those who will campaign equally tirelessly to have a tree chopped down when they feel it is getting in the way of their light or it drops leaves on their nice tidy garden. However, we seem to have reached an attitude that says, “Chop it down and then face the consequences”. That just cannot be right. Conversely, the beleaguered local authorities that have to deal with diseased trees often find themselves subject to the most enormous outpouring of vitriol when dealing with trees that would infect other trees if they did not. It is important that these issues are managed and communicated well. We think the amendments suggest ways of making the process more consultative and effective.
The figure that my noble friend Lady Young gave of 50% of large trees being lost—I know there have been some serious tree disease issues and they have caused some of that, but not all of it—is staggering. TPOs are made and managed by our local authorities, and they protect individual trees and groups of trees or woods that are of particular value to local communities. TPOs prohibit the felling of and damage to trees without the written consent of the local planning authority. They are no longer valid if removing the tree is part as Iof an approved planning application.
Trees can be vital to the general character of an area and can be at the heart of particular historical or architectural interest at a site. When I was a young girl growing up in a new town, there were woods at the end of almost every road—and bluebell woods are particularly lovely at the moment. Those woods are important to local people.
The fact that a development proposal will require changes to trees can be a material consideration in whether to give permission for those works. Individual trees or groups of trees within or outside a conservation area can be offered protection by a tree preservation order issued by a local planning authority where it is expedient to do so in the interests of amenity. We believe that trees needs more protection, as afforded by the amendments tabled by my noble friend Lady Young.
The single offence for a breach of TPOs seeks to ensure that
“all fines are commensurate with the potential profits of contravention”,
but it is not just about profit. Sometimes there is an attitude of, “Well, if I chop it down, it’s gone. They can’t do anything about it. I might get a fine for it but I’ll still be able to do whatever it is I wanted to do with that land”. I do not think we can tolerate that; there has to be some kind of commensurate punishment for that.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, this group of amendments deals with tree preservation orders and would extend their scope and strength. TPOs are an important tool to support tree protection and need to be strengthened in order to be effective. The noble Baronesses, Lady Young of Old Scone and Lady Taylor of Stevenage, have spoken eloquently to the amendment.
Despite a well-established tree protection system, most of our ancient trees have no legal protection. Perhaps now is the time for ancient trees to have the same protection as our old buildings and other endangered wildlife. The use of TPOs around the country is very patchy: some councils, such as City of London and Blackpool, have fewer than 40 TPOs in place, whereas around 50 councils report over 1,000 TPOs, including eight with over 2,000 TPOs. Trees are an essential asset, especially in urban areas, and need to be treated with greater respect.
The amendments in the name of the noble Baroness, Lady Young of Old Scone, cover: penalties for non-compliance in Amendment 296; the meaning of “amenity” in Amendment 297; TPOs being in the public interest in Amendment 298; removing the exemption of dead and dying trees in Amendment 299; and, lastly, consultations on TPOs in Amendment 301. I support all of them. Where trees have died or are dying, I support, in general, their retention. As such, they will become homes for wood-boring insects, and nest sites for birds and smaller mammals. I do, however, add the caveat that where a tree that has died has been assessed as likely to be a danger to the public, perhaps some of the upper branches should be removed to make it stable and the lower limbs and trunks left to decay naturally.
How often have we seen councils announce that they are cutting down trees to make way for some new road improvement scheme or other facility? The public, quite rightly, rise up in protest. How much better it would be if all councils and authorities, where they are planning schemes, consult with the public and take the public with them. Perhaps with a little tweaking, their plans could be amended to ensure the retention of trees, whether ornamental or traditional species.
Trees are the green lungs of our urban and inner-city areas. They provide roosts and nesting sites for birds; their branches provide shade and a cool breeze on a summer’s day; and they hold 30% of carbon storage. We fully support this suite of amendments and look forward to the Minister’s comments.
Earl Howe (Con)
My Lords, I thank the noble Baroness, Lady Young of Old Scone, for proposing this group of amendments, all of which are related to the protection of trees. I should start by saying that as a member of the Woodland Trust, and as an owner of woodlands myself, which are interests I should declare, I have sympathy with the spirit of these amendments. I shall, however, attempt to persuade the noble Baroness that they are unnecessary or, in some cases, undesirable.
First, Amendment 296 seeks to make all offences of contravening a tree preservation order or tree regulations subject to an unlimited maximum fine. I understand the sentiment behind this proposal. It is right that there needs to be a credible threat of significant fines if we want to protect the trees that we most cherish. However, I think there is an important distinction between deliberate damage to a tree, leading to its total destruction, and, for example, the loss of a single branch, where the tree itself survives. Our current approach to fines recognises this difference. Wilful damage leading to the destruction or likely destruction of a tree is punishable by an unlimited fine, and there are examples of the courts handing down significant fines. Less serious offences—for example, where someone prunes a tree and is perhaps unaware that it is protected by a tree preservation order—are subject to a lower maximum fine of up to £2,500.
I firmly believe that the current approach is the right one. It is proportionate and fair, and provides a clear steer to the courts. For these reasons, I am afraid I am not able to support this amendment.
I turn to Amendments 297 to 299. Amendment 297 would provide a definition of “amenity” for tree preservation orders. Amendment 298 would make it clear that local planning authorities may utilise tree preservation orders proactively and where there is no indication of an intent to undertake works to a tree. Amendment 299 would maintain protections for dead trees and ensure that they remain eligible for tree preservation orders.
The Government recognise the need to protect and enhance biodiversity through the planning system, and trees are central to this. I agree with the noble Baroness that tree preservation orders are important tools. Local planning authorities may now use them, as she recognised, to protect selected trees and woodlands if their removal would have a significant negative impact on the local environment and its enjoyment by the public. This gives local planning authorities scope to protect the trees important to their communities, whether for amenity or for wider reasons.
The making of tree preservation orders is discretionary and local planning authorities may confer this protection where there is a risk or an emerging risk of damage to trees. So I argue that it is unnecessary to make an amendment to the Town and Country Planning Act 1990 to ensure their proactive use. Perhaps the fact that I am putting that on the record will be helpful.
I turn to the definition of “amenity”. There is already a wide definition within the tree preservation order regime of the concept of amenity. The meaning of amenity is deliberately not defined in statute, so that decision-makers can apply their full planning judgment to individual cases. The term is, however, already well understood and applied to a wide range of circumstances, with the planning practice guidance already being clear that the importance to nature conservation or responding to climate change may be considered.
Changing the meaning of amenity in the way proposed could lead to uncertainty for considering tree preservation orders and risks unintended consequences more generally in the planning system. Tree preservation orders protect living trees; they do not protect dead trees. It is important that dead trees are exempt from orders, as urgent works may need to be taken where dead trees pose a risk. In particular, for group and woodland tree preservation orders, diseased trees can pose biosecurity risks. Ash dieback is a classic example in which you absolutely have to be proactive. I speak from very recent personal experience. Preventing the spread of disease from dying trees is often very important. There can often also be an urgent need to protect the public, as the noble Baroness, Lady Bakewell, said.
Looking at the wider picture, tree preservation orders are only one of the tools we have to ensure these invaluable assets are protected. For example, our already strong protections for biodiversity in the planning system give consideration to the preservation and value of trees. We are also taking significant further steps to improve outcomes for biodiversity in the planning system through the 10% biodiversity net gain requirement in the Environment Act 2021. This will make trees of value to development, given the significant biodiversity value they bring. This will help ensure that trees are seen as integral to development as opposed to a barrier to it. Therefore, while I appreciate the spirit of these amendments, I am not able to support them, bearing in mind the breadth of protections that trees are already afforded. I hope I provided enough reassurance for the noble Baroness not to move these amendments when they are reached.
Amendment 301 seeks to introduce a requirement for public consultation prior to a local planning authority deciding to revoke a tree preservation order. The existing revocation process, as set out in the tree preservation regulations, is long established. Among other matters, it requires a local planning authority to notify persons interested in the affected land that an order has been revoked.
While the current legislation does not require public consultation, in practice I expect that local planning authorities would want to engage and consult with interested parties before reaching their decision. Our planning practice guidance makes clear that this option is open to them. The current approach to the revocation of tree preservation orders is squarely in line with revocation processes in other parts of the planning system, for example, where a local listed building consent order is revoked.
In summing up, I hope I have provided reassurances to the noble Baroness, Lady Young, and that she will be content to withdraw Amendment 296 and not move her other amendments in this group when they are reached.
Baroness Young of Old Scone (Lab)
My Lords, I thank noble Lords who have taken part in this debate, and I will just make a couple of points to the Minister.
The mood music around TPOs is really important. There is guidance, as the Minister has said, on revocation, but its implementation is very patchy across the country. The definition of who is interested in the land can be interpreted very narrowly so that the folk who are clearly interested—local residents on a wider basis—are often not informed about revocations. That is just one example of where these amendments intend to demonstrate that the Government are serious about TPOs and want to create a different mood music around them.
In terms of dead and dying trees, local authorities currently move very rapidly to remedy, for example, trees that are coming into a dangerous condition and need to be felled. Those of us who have got ash dieback know that they can move very rapidly on that. I do not think there is a real problem around saying that TPOs must be strengthened because there is disease. What we want for TPOs is a presumption for retention of trees, rather than the possibility of both revocation and removal of dead and dying trees. I am obviously not of the same mind as the Minister.
I will make a slightly barbed political point. I do not know whether there are any friends of the Conservative leader of Plymouth council in the Chamber. He must be rather regretting that he was not strenuous about the observation of tree protection orders, since he lost his job over the recent debacle of the illegal felling of trees in Plymouth. So I urge the Government to recognise that the public, bless their hearts, have the bit between their teeth on this. Unless the Government demonstrate that they recognise that there is a point, and unless they make some movement towards finding ways of enabling the public to be more effectively involved and to feel that TPOs are a stronger protection, this could happen again and again.
Earl Howe (Con)
I am grateful to the noble Baroness for giving way. It might be helpful if I write her a letter to follow up this debate, picking up some of her points, now and in her opening speech, that I may not have picked up in my response.
Baroness Young of Old Scone (Lab)
I thank the Minister for that, and I look forward to his letter. I beg leave to withdraw the amendment.
“Developments affecting ancient woodlandWithin three months of this Act being passed, the Secretary of State must vary The Town and Country Planning (Consultation) (England) Direction 2021 so that it applies in relation to applications for planning permission for development affecting ancient woodland.”Member’s explanatory statement
This amendment requires the introduction of a consultation direction for developments affecting ancient woodlands.
Baroness Young of Old Scone (Lab)
I am sorry about this; I did not realise that my amendments would be grouped so closely together late at night. I shall be speedy on Amendment 300. I declare my interest as chair of the Woodland Trust.
Had this group been at a different time of day, I would have started by saying, “Long ago and far away —I want to tell you a story”. But it is long ago and far away, because, during the passage of the Environment Act 2021, which is quite long ago and far away, I pressed the Minister on better protection of our scarce and precious resource of ancient woodland—the last remaining fragments—from development which might damage or destroy them. Ancient woodlands have literally no statutory protection, other than some very general admonitions in the National Planning Policy Framework. If I recall correctly, these are in a footnote, just to add insult to injury—that is the only protection for ancient woodland.
The evidence of the need for better protection for ancient woodland is clear. Currently, 800 cases of threats to damage or destroy ancient woodland are in the Woodland Trust’s register. The second Thames crossing will again potentially impact on a large number of ancient woodlands—that is one example of where infrastructure development is a particular issue.
The importance of protecting ancient woodland has been enunciated in this Chamber many times, but the evidence is amassing even further. It has now been demonstrated that ancient woodland continues to sequester carbon, for example, even when it is fully grown and ancient, so our ancient woodland is a really important carbon sequestration resource. It is only 25% of all woodland in Britain, but it holds 36% of the woodland carbon. In addition, ancient woodland is now recognised as our richest habitat for biodiversity. If you want a good read, read the Woodland Trust’s report on the state of woods and trees, which has lots of interesting facts—one of them is about just how crucial for biodiversity ancient woodland is.
On 26 October 2021, during the passage of the Environment Act that I referred to, the Government promised—they had already done so in the Commons—to do a number of things to strengthen ancient woodland protection. The promises were threefold. First, they promised
“a review of the National Planning Policy Framework to ensure that it is being implemented correctly”.
This was to track that it was doing what it said on the tin to protect ancient woodland. If it was not being sufficiently protective, they committed to
“strengthen the guidance to local planning authorities to ensure that they understand the protections provided to ancient woodland”.
Secondly, the Government promised to
“consult on strengthening the wording of the National Planning Policy Framework … to ensure the strongest possible protection of ancient woodlands”.
The third thing they promised, which I think is the most important, was an undertaking to
“amend the town and country planning (consultation) direction to require local planning authorities to consult the Secretary of State … if they are minded to grant permission for developments that might affect ancient woodland”.
That would give the Secretary of State the opportunity to have a quiet word behind the bike sheds or, at the very most, call it in for a Secretary of State decision. That, for me, was absolutely splendid, and I waxed lyrical in the Chamber about how happy I was with those assurances.
At that point, the Minister assured the House that
“these measures will be undertaken in a timely manner, working hand in hand with the forthcoming planning reforms”.—[Official Report, 26/10/21; col. 706.]
A year and a half has passed, and many of the “forthcoming planning reforms” are still forthcoming. In particular, there is no sign of the amendment to the town and country planning (consultation) direction. Discussion on all three of the promises the Government made at that time has ebbed and flowed as Ministers and civil servants have ebbed and flowed. We are still told that they are live promises, but they are not terribly live. So I decided that I would, on this occasion, help the Government out by putting the consultation direction change in this Bill. It is the only planning Bill that we are likely to have for some considerable time.
For me, the most important thing about the amendment on the town and country planning (consultation) direction is that if local planning authorities have to refer to the Minister if they are thinking about impacting on ancient woodland in any development, it will make them think twice. Very often, with ingenuity and good will, local authorities can work with developers to ensure that the damage that might occur to ancient woodland simply does not happen; it is not beyond the wit of man. The work that the Woodland Trust has done with HS2 has not solved all the problems of driving a fast rail route through ancient woodland, but it has resulted in a reduction in the number of ancient woodlands impacted—although there is much more that HS2 can do.
All those promises were made, but they have not happened. I am really embarrassed about the effusiveness with which Hansard on 26 October 2021 shows I thanked the Minister, but I did stress that, once the amendment to the consultation direction had been made, I hoped that the Secretary of State would take the new call-in duty very seriously. We have not had a chance to find out yet whether it will be taken seriously, because the consultation direction change has not yet happened. I hope that the Minister and the Government will feel able to support this amendment to bring in better protection for important and threatened ancient woodland, as was promised in both Houses a year and a half ago. I beg to move.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, the previous group of amendments has set the scene for this vital amendment, which we support. Development close to ancient woodlands can have a devastating effect. In 2021, Defra made three commitments to improving the protection of ancient woodlands and veteran trees, as the noble Baroness, Lady Young of Old Scone, said. One of those commitments was to amend the Town and Country Planning (Consultation) (England) Direction 2021
“to require local planning authorities to consult the Secretary of State for Levelling Up, Housing and Communities if they are minded to grant permission for developments that might affect ancient woodland”.—[Official Report, 26/10/21; col. 706.]
The Woodland Trust has seen a welcome reduction in major developments that are within ancient woodland and result in direct loss. However, there are indirect impacts, including the spread of invasive species, as well as the impact of pollution on wildlife and the ecological condition of ancient woodland—all of which are still prevalent. Natural England’s advice on providing buffers—space between development and ancient woodland boundaries—is all too often not upheld.
Ancient woodland has taken centuries to reach maturity and can be destroyed in days. The Woodland Trust has provided a very pertinent case study of an indirect impact on an ancient woodland: the building of 100 houses, including development of footpaths, within the ancient woodland of Poundhouse copse, including a drainage scheme right next to it, despite standing advice that drainage should not be within a buffer zone. This has led to a mix of direct loss of woodland and indirect impacts such as hydrological impacts. It is necessary to think and act very carefully when planning and implementing developments near ancient woodlands, in order to protect them for future generations. I look forward to the Minister’s comments.
Baroness Taylor of Stevenage (Lab)
My Lords, I add my thanks to those of the noble Earl, Lord Howe, to my noble friend Lady Young for her tireless commitment to the environment, very well demonstrated in these three groups of amendments that she has put before the Committee today.
According to the Woodland Trust, ancient woodland covers just 2.5% of the UK and is protected because it is an irreplaceable habitat. Such woodlands are rich in wildlife and a vital component of the British landscape. My noble friend outlined with great clarity the provisions she had been assured in October 2021 would be incorporated in forthcoming planning law. The Government’s own planning guidance on ancient woodland says:
“Ancient woodland takes hundreds of years to establish and is defined as an irreplaceable habitat. It is a valuable natural asset, important for … wildlife (which include rare and threatened species)—there is also standing advice for protected species … soils … carbon capture and storage … contributing to the seed bank and genetic diversity … recreation, health and wellbeing … cultural, historical and landscape value. It’s any area that’s been wooded continuously since at least 1600 AD. It includes … ancient semi-natural woodland mainly made up of trees and shrubs native to the site, usually arising from natural regeneration … plantations on ancient woodland sites—replanted with conifer or broadleaved trees that retain ancient woodland features, such as undisturbed soil, ground flora and fungi. They have equal protection in the National Planning Policy Framework. Other distinct forms of ancient woodland are … wood pastures identified as ancient … historic parkland, which is protected as a heritage asset in the NPPF”.
If all that is genuinely the Government’s position, why would they not want to support my noble friend Lady Young’s amendment? It is a very important issue, and we urge the Minister to accept the amendment.
Baroness Willis of Summertown (CB)
My Lords, I too fully support Amendment 300 proposed by the noble Baroness, Lady Young. A number of the points that I wanted to make have already been made, so I shall be brief.
One key thing we keep losing sight of in the discussion about ancient woodland is the many additional services that ancient woodland provides to our landscapes and to nature. The first one, which we did hear about, is carbon sequestration. I looked up the figures for carbon sequestration, and although ancient woodlands will not sequester as much carbon as something like Sitka spruce, for example, they are able to store huge amounts of carbon, both above and below ground. In particular, the fungal communities below ground can store up to 40% more carbon as a result of having these mycorrhizal assemblages. That is really important, because 36% of all woodland carbon is currently stored in these ancient woodlands.
There is a second role I want to flag up. Something that often gets forgotten about is the role of those woodlands in providing really important pollination services. So often, when we look at ancient woodland, it is a patch of trees surrounded by a sea of agricultural land. Some 80% of our crops in this country need pollination services, and pollinators need habitats and foraging places—that is what those ancient woodland patches provide. Without them, you then have to bring in lorries with pollinators in them. We do not want to go down that route. There is very good evidence—not from the UK but from other places in Europe—that if you remove a patch of ancient woodland the yield from the crops is significantly reduced. We need to bear that in mind
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, I too add my support for the amendment from the noble Baroness, Lady Young, and pay tribute to the work she has done in this area. I declare an interest as someone who grows trees and has contributed to the green canopy project in Suffolk. We managed to plant 1.3 million trees under that auspice, which was more than a third of the national total. We were completely committed through various networks of people to this and, indeed, to the preservation of ancient woodlands.
Two things have struck on listening to the discussion of the various amendments on this issue. First, I was struck by the statement from the noble Baroness, Lady Young, about the presumption of retention. That led me to think that there are some underlying principles which might join up our planning, environmental aims and building aims, where clearly things are in conflict. If we could establish some overarching principles, we might be able to work more closely together on achieving what we all desire. A specific example concerning ancient woodlands is Hintlesham Woods in Suffolk. which was under threat from the National Grid, which was going to put pylons across it. Working together, the Suffolk Wildlife Trust, the Woodland Trust and the RSPB engaged in a process whereby the National Grid had the consultation it should have had and shifted the route, so that it bypassed the woodland and the woodland was saved. That would have happened as a matter of course if the presumption for consultation had been enshrined.
I fully support this amendment, because we need to ramp up the protection for trees across all these areas for the sake of our environment, and to do so in consultation with our planning aims and environmental aims.
Earl Howe (Con)
My Lords, Amendment 300 in the name of the noble Baroness, Lady Young of Old Scone, would require within three months of the Bill achieving Royal assent the implementation of the Government’s commitment to amend the Town and Country Planning (Consultation) (England) Direction 2021 so that local planning authorities must consult the Secretary of State if they want to grant planning permission for developments affecting ancient woodland. Let me first make clear to the noble Baroness and to all noble Lords who have spoken that we are committed to reviewing the direction to require authorities to refer applications if they are minded to grant permission for developments affecting ancient woodland.
As the noble Baroness knows, the direction is a strategic tool aimed at ensuring the right applications are captured. Noble Lords will be aware of consultation which has taken place recently on changes to the National Planning Policy Framework, which I mentioned earlier. It may be helpful for context if I say that there are other requests being made for inclusion in the direction. We really need to amend it in a managed way, capturing all the issues to provide clarity and stability to authorities, developers and others.
The noble Baroness is a resolute campaigner on these issues, and, indeed, referred to herself “banging on” about them in the House last year. She does so extremely effectively and long may that last, but in this instance I cannot give my support to the hard deadline she seeks, as it is important that the direction be updated in a coherent and managed way. I realise I am asking the noble Baroness to be patient for a while longer, but I hope she will be content to withdraw her amendment on that basis.
Baroness Young of Old Scone (Lab)
I thank noble Lords for the support they have shown for this amendment. We have to remember that less than 2% of ancient woodland remains in this country. We are right on the brink, being down to such a small number of fragments that are, in many cases, increasingly unviable, so it is a real and pressing issue. The Minister has asked me to have patience. I am glad he was able to restate the commitment to the amendment to the direction, but my attitude to being asked to be patient will depend on how long that patience has to last. I wonder whether he can say how long it will have to last, because it has lasted now for a year and a half. If it were another year and half, I think I might have run out of patience. I do not know if I can press him now to say when the amendment might emerge. I very rarely read in Hansard how wonderful the Government have been, but I would commit to saying how wonderful they are if the Minister can tell us when this change to the direction might happen.
Earl Howe (Con)
My Lords, nothing would give me greater satisfaction than to be able to tell the noble Baroness but, having asked this question myself, I fear I cannot give a definite timescale at the moment. I am sorry for that.
Baroness Young of Old Scone (Lab)
On that basis, I do not think I can guarantee not to come back on Report with something on this, but in the meantime, I beg leave to withdraw the amendment.
Lord Northbrook
“British standards: publicationWhere legislation made under the Planning Acts, or a local authority planning policy, refers to a British standard, the Secretary of State or local authority must take such steps as are necessary to make the relevant standard publicly available online free of charge.”
Lord Northbrook (Con)
My Lords, Amendment 311 requires the British Standards Institution, the BSI, to publish electronically the text of at least some British standards without charge to readers. Secondary legislation and LPA’s planning policies frequently require compliance with British standards or employ definitions which refer to British standards. Examples include the building regulations, my local borough’s— the Royal Borough of Kensington and Chelsea’s—definition of a basement and the Code of Construction Practice which, for example, requires compliance with
“BS 5228: Code of practice for noise and vibration control on construction and open sites”.
However, it costs £330 to obtain a hard copy of a BSI document or to download it in PDF format. The cost is reduced to £165 for BSI members, which we imagine includes the council.
A local residents’ association of the RBKC asked the council to reproduce in or attach as an appendix to the code all, or just the relevant parts, of BS 5228 so that neighbours and residents’ associations can see what is required. The council replied that it cannot do so as copyright vests with the BSI.
I believe that all citizens have the right to see the relevant British Standards without disproportionate charge, and that the BSI should be instructed to publish these standards on the internet. The Minister in another place responded in a letter to Richard Drax MP on 31 August 2022, saying:
“The BSI are an independent organisation and we therefore cannot compel them to publish some, or indeed any, of their standards without charge”.
I believe there must be numerous independent organisations referred to in statute whose publications are routinely made available free of charge on the internet. For example, air source heat pumps are legally required to comply with MCS planning standards or equivalent standards. The relevant microgeneration installation standard—MCS 020—is the property of the MCS Charitable Foundation and is published on the internet, available for anyone to read without charge. Why cannot the BSI do the same?
If the issue is one of cost, one solution would be for the Government to negotiate with the BSI and pay it to publish. If this is not acceptable to either party, the Government should take powers to compel publication. As a matter of principle, our citizens should not have to pay to read the text of those obligations with which they are legally obliged to comply. I beg to move.
Lord Bellingham (Con)
My Lords, I rise very briefly to support my noble friend Lord Northbrook. It is a very simple and straightforward amendment, but it raises some important principles. As my noble friend pointed out, the BSI is a well-resourced organisation—a commercial, not-for-profit body established under royal charter. I had a look at its website, although I did not look at its accounts. It would be wrong to say that it is awash with money, but it has plenty of money to carry out the excellent work it does on behalf of many different parts of industry in our society. There is no reason whatever why it cannot publish these matters, and it would make a huge difference to residents to be able to know exactly what is going on.
Maybe the Minister can look at one particular point —my noble friend did not mention this, though he mentioned a number of other bodies that are mentioned in statute and different legislation that do make reports and other information available free of charge. I gather that in Ulster such documents are online completely free of charge, and that is a precedent that our Government could follow.
I hope that if the Minister cannot promise to accept the amendment, she will at least undertake to talk to the British Standards Institution about this, because it is a problem that could be solved very easily.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 311 in the name of my noble friend Lord Northbrook would require the Government to make all standards that relate to all planning Acts, or local authority planning policy, online and free of charge.
Our national standards body, the British Standards Institution or BSI, publishes around 3,000 standards annually, and these standards are the product of more than 1,000 expert committees. The BSI is independent of government and governed by the rights and duties included in its royal charter. This includes the obligation to set up, sell and distribute standards of quality for goods, services and management systems. About 20% of the standards produced are to support the regulatory framework. This will include a minority of standards made to support planning legislation and local authority planning policy.
To ensure the integrity of the system and support the effective running of the standards-making process, the funding model relies on the BSI charging customers for access to its standards. As a non-profit-distributing body, the BSI reinvests its income from sales in the standards development programme. In some circumstances, the Government will fund BSI standards to make them available. For example, last year the then Department for Business, Energy and Industrial Strategy made available 100,000 copies of one of the energy management systems standards to UK SMEs.
I hope that this provides sufficient reasoning for my noble friend Lord Northbrook to withdraw his amendment. I am very happy to discuss this further with noble Lords and the BSI.
Lord Northbrook (Con)
My Lords, I am most grateful to the Minister for her reply. I was interested to hear that in some circumstances the Government have funded the publication of these standards. I am not sure of the total number of standards in this planning area—there may not be a huge number of them—but I do not see why the Government might not extend that action in this area. I have listened carefully to what the Minister has said and will read it carefully in Hansard. In the meantime, I beg leave to withdraw the amendment.
Lord Northbrook
“Change of use to café etcIn the Town and Country Planning (General Permitted Development) (England) Order 2015 (S.I. 2015/596), Schedule 2, Part 3, after Class B.1 insert—“(B.1A) Development is not permitted by Class BB from a use within Class E (a) or (c)-(g) (commercial, business and service) of Schedule 2 to the Use Classes Order, to Class E (b) (the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises).””
Lord Northbrook (Con)
My Lords, Amendment 312 obliges the Secretary of State to amend the general permitted development order to make a change of use from business premises to a café or restaurant subject to planning control. Regulations made in 2020 amended the Town and Country Planning (Use Classes) Order 1987 by introducing, in Part A of Schedule 2, a new class E—“Commercial, Business and Service”—covering, inter alia, shops, offices, cafés and restaurants. Change of use from any part of this class E to any other part of class E is permitted development so, for example, a shop or an office may now change its use to a café or restaurant without requiring planning permission.
This will have a number of undesirable consequences in quiet residential areas. For example, planning permission may have been granted for a change of use of a building, or part of it, from residential to office without any objection, and the office may now change its use to a café or restaurant without planning control. On the face of it, there would be nothing to stop, say, an estate agent turning into a McDonald’s, open throughout the night, providing it did not sell alcohol. LPAs would no longer be able to use planning policies to regulate or prevent such activities.
If a café or restaurant wishes to sell alcohol, it needs a licence to do so under the Licensing Act 2003. I take comfort from the ability of local authorities to refuse permission by virtue of the specified licensing objective of the prevention of public nuisance. However, noise nuisance and disturbance from customer parking, loading and unloading, waste disposal and odours can be as disquieting from unlicensed as from licensed premises, and they are now impossible to control by planning policy.
My suggested solution is to amend Part 3 of Schedule 2 to the GPDO, entitled “Changes of use”, by inserting a new class BB—commercial, business and service to restaurant or café—with the text as follows:
“Development is not permitted by Class BB from a use within Class E (a) or (c)-(g) (commercial, business and service) of Schedule 2 to the Use Classes Order, to Class E (b) (the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises)”.
The Minister responded in a letter to Richard Drax on 31 August 2022:
“We have created a new ‘Commercial, business and service’ use class (Class E). This encompasses offices, shops, restaurants and other uses which are suitable in a town centre. Changes of use within the class does not require planning permission. The new class also allows for a mix of uses to reflect changing retail and business models, allowing businesses the ability to adapt to changing circumstances and respond to the needs of their local communities more easily and quickly. However, it remains the case that planning permission is required to change use to or from a pub. This ensures that local consideration can be given to any such proposals, in consultation with the local community”.
I believe that local communities should have a say in the establishment of new cafés and restaurants, not just pubs. I beg to move.
Baroness Taylor of Stevenage (Lab)
My Lords, this group of amendments is another indication of why we believe it would have been better to bring forward a dedicated planning Bill rather than trying to amend some of the interconnecting pieces of legislation that have overcomplicated the planning scene in the last decade and have certainly had some undesirable effects because unintended consequences have not properly been taken into account. The noble Lord, Lord Northbrook, has eloquently described some of the impacts of widening the use classes so that local people and local authorities no longer have much control over what takes place in their own high streets. We get a proliferation of betting shops and things that people do not really want to see so much of in their high street.
I will give just two examples of permitted development. In Hertfordshire, over 750,000 square feet of economic and commercial space has been lost to permitted development. These developments are delivered with none of the community engagement and consultation that go on with standard planning applications, and they then often result in the infrastructure needs of the development being ignored. This has had the longer-term impact of alienating communities from development altogether, as they see housing developed in unsuitable locations and with no consideration of the proximity of any local facilities. One of the worst examples of this is in Harlow new town. Harlow, like Stevenage, has a commercial and industrial zone deliberately segregated from its residential areas. This was part of the master-planning for first-generation new towns. A permitted development saw a housing development conversion in the middle of this commercial/industrial area, leaving its residents feeling isolated from community facilities and other neighbourhoods.
The other example has been in relation to the creation of houses of multiple occupation from family homes in residential streets, putting unreasonable extra pressure on local resources and creating often far more transient populations, which has disrupted previously settled neighbourhoods.
There seems to be something very perverse in pursuing this permitted development regime at the same time as withdrawing the requirement to set housing targets. The former allows often substandard housing to be developed without the benefit of infrastructure funding, funding for social and affordable housing, or adequate consideration of the needs of the local area. It can put unnecessary pressure on public services in that area and create further pressures on housing as local people are priced out of reasonable developments or forced into poor conversions that are totally unsuitable for family living.
My Amendment 312F calls for a review of this permitted development regime to properly gather data on what it has delivered in terms of: achieving housing targets; importantly, the quality of housing delivered; the impact on heritage and conservation areas; the overall carbon impact since permitted development expanded to demolition; the relative costs to local authorities of dealing with processing permitted development compared with full planning consents; and how it is intended that permitted development sits within the role of the national development management policies.
We are also interested to learn from the review how the Government assess that a permitted development has contributed to levelling up. The feeling of the local government community is that permitted development has done the exact opposite of levelling up and driven a coach and horses through the rigour of the planning regime. That is why the Local Government Association’s comment on this issue was that
“if the Government is serious about strengthening the role of Local Plans, they should also urgently revoke permitted development rights”.
Amendment 312J refers to the totally inconsistent way in which Article 4 directions have been applied across the country. Such directions restrict the scope of permitted development in relation either to a particular area or site or to a particular type of development anywhere in an authority’s area. They can be used to control works that could threaten the character of an area of acknowledged importance, such as a conservation area. Article 4 directions are not needed for listed buildings, which are protected under different legislation, but noble Lords will remember the Harlow example that I gave earlier. Stevenage, which also has a segregated area for commercial and industrial uses, successfully argued that an Article 4 direction should apply to that area so that we were not faced with permitted development housing there, isolated from all our community facilities.
However, the Government have threatened to remove the provision of Article 4 directions altogether and have applied them inconsistently in different locations. Our Amendment 312J asks that a statement be laid before both Houses, setting out how the Government intend to achieve consistency in the application of Article 4 directions.
Lord Bellingham (Con)
My Lords, it gives me great pleasure to support my noble friend Lord Northbrook and to reflect on the comments made by the noble Baroness, Lady Taylor of Stevenage, from the Opposition Front Bench.
First, I want to say something about the high street because, during my time as a constituency MP in the other place, I campaigned tirelessly to put more life into the high streets of two local towns in my former constituency. One of the things that we looked at was trying to make sure that the flats and areas above shops were converted into units, modernised and taken on by the local housing association to make use of those potential dwellings. The local housing association had great success in doing this. It moved people into the high street so that, at all times of the day, there are people around and it is much more vibrant than it was in the past, when it went completely dead at about 5 pm.
Trying to put more life into the high street is incredibly important; supporting the enterprise and wealth creation agendas is equally important. That is why the Government made these changes to permitted development, as my noble friend Lord Northbrook outlined. I can see why they were keen to have more flexibility between the different classes—offices, cafés, restaurants and other businesses—so that, without having to go to the local planning authority to get planning permission, you could just use permitted development to change an office or a charity shop, for example, into a café, a restaurant or whatever.
However, as my noble friend pointed out, the problem is that that works perfectly well in a high street context—I do not think anyone would object to that—but it is different when you have a corner shop, an estate agent or a charity shop in a residential area. This occurs quite regularly; I can think of examples of it in East Anglia. When a small estate agency, for example, in a mainstream residential area closes down, it could easily become a café under these permitted developments. I do not think that anyone would object to a café but, if it was a restaurant such as a McDonald’s, you could have a great deal of extra traffic and disturbance. The whole ambience of that residential area could fundamentally change very quickly.
What the Government have done here has the right intentions but we are looking at unintended consequences for some residents in some parts of the country. This is why I think it was not good enough when the Minister in the other place said that everything was okay because if it was a restaurant selling alcohol, or a pub, the licensing laws would kick in in those specific areas that my noble friend outlined. If it is something like a McDonald’s or a Costa—not that I have anything against McDonald’s or Costa; in the right place, they are excellent retail outlets that bring a great deal of pleasure to different communities—we have to be on the side of the residents.
As the noble Baroness pointed out, making sure that we have the trust and engagement of local communities is incredibly important. We are all for—certainly this side of the House is passionate about—enterprise and the wealth creation agenda. At the same time, if we lose the support of communities and, through unintended consequences, make their lives miserable, it would be a step backwards.
Lord Foster of Bath (LD)
My Lords, I will be very brief. I speak only because of the words of the noble Lord, Lord Bellingham, just now. Like him, I am very keen to see, and as a Minister had some responsibility for, the improvement of high streets. The noble Lord is quite right that on a high street these changes could take place without the significant problem to local residents that he described might happen in a more residential area.
We are very supportive of the principle of Amendment 312, but I say very gently to the Minister that if, as I suspect, she is going to suggest that there is no need for this amendment, I would encourage her to remind herself of the earlier debate on the agent of change principle. That too was apparently not necessary. Frankly, it seems that one or the other will be necessary in the circumstances that the noble Lord, Lord Bellingham, described in a residential area. We need either a separate use classification or the agent of change principle to give local residents that protection.
Baroness Scott of Bybrook (Con)
Amendment 312, in the name of my noble friend Lord Northbrook, seeks to prevent the movement of premises being used as shops, banks, gyms, offices et cetera within (a) and (c) to (g) of class E to be used instead as cafés or restaurants in (b).
I take this opportunity to make clear to noble Lords that vibrant and diverse high streets and town centres are vital to communities, as places where local people shop, use services and spend their leisure time.
The Government introduced the commercial business and service use class in 2020 to support our high streets and town centres, enabling them to respond quickly to changes in consumer demands. This use class includes a wide range of uses commonly found on our high streets, such as shops, banks and offices, as well as services such as creches and health centres. Movement between uses within the class does not constitute development and therefore does not require planning permission. Thus, this class provides flexibility to move between such uses and allows for a mix of such uses to reflect changing retail and business models, and to avoid premises being left empty.
We believe that restaurants and cafés are an important part of our high streets and town centres. Such uses support high street vitality, attracting people to the high street to shop and spend their leisure time, and we would not want to limit them. My noble friend’s amendment seeks to restrict the flexibility of premises within the commercial, business and service use class to be used as cafés or restaurants. However, a permitted development right cannot be used in this way to limit movement within this use class. The legislative approach of this amendment is therefore flawed and we are unable to support it.
I turn next to Amendment 312F in the name of the noble Baroness, Lady Taylor of Stevenage, which seeks to require the Secretary of State to publish a review, within 12 months of the Bill achieving Royal Assent, of all permitted development rights. Permitted development rights are a national grant of planning permission that allow certain developments, including building works and changes of use, to be carried out without an application for planning permission having to be made. Permitted development rights have been a well-established part of the planning system for many years, supporting homeowners and businesses. In recent years, new permitted development rights have been used to support housing delivery. The rights are helping deliver much-needed additional new homes, including more than 94,000 homes in the seven years to March 2022.
In response to comments about the quality of some of the homes delivered, we commissioned research into the operation of the rights, published in July 2020. We subsequently legislated to ensure that all new homes delivered under permitted development must, as a minimum, meet the nationally described space standards and have access to adequate natural light in all habitable rooms. In addition, the current consultation on the infrastructure levy seeks views on the circumstances in which it may be appropriate to apply the infrastructure levy to permitted development.
We continue to keep permitted development rights under review, so this amendment is not necessary. It would also be impractical, as it would require a disproportionate review of 155 separate permitted development rights, all within the 12 months proposed. On these grounds, we will not be able to give this amendment our support.
Baroness Taylor of Stevenage (Lab)
I am grateful for the response, but it seemed a bit equivocal around permitted development rights and the infrastructure levy. Can the Minister give us some more clarity? Is it under consultation still? One of the important problems with permitted development is that is has not attracted any infrastructure support whatever or any percentage of affordable housing. For example, if an office building is converted into luxury flats, there is no infrastructure provided and no requirement to provide affordable housing that sits alongside it. This is a very important message for the infrastructure levy that it should incorporate permitted development.
Baroness Scott of Bybrook (Con)
It is in the current consultation. I assure the noble Baroness that we will be taking account of the consultation responses on this.
I turn next to Amendment 312J, in the name of the noble Baroness, Lady Hayman of Ullock, which seeks to require the Secretary of State, within 60 days of the Bill achieving Royal Assent, to make a statement on the use of Article 4 directions by local authorities, and to explain the reasoning behind occasions when they may be modified by the Secretary of State and their resulting consistency.
It may be helpful if I briefly explain Article 4 directions. Permitted development rights are a national grant of planning permission. These allow certain building works and changes of use to be carried out without having to make an application for planning permission. Where it can be clearly evidenced that a permitted development right will cause unacceptable harm to a particular area, local authorities can make an Article 4 direction. This stops development proceeding under the permitted development right and requires that a planning application is submitted.
While Article 4 directions are consulted on and made locally, the Secretary of State has the power to modify or cancel an Article 4 direction. He will intervene where he considers that there are clear reasons for doing so, most particularly where he considers that they do not comply with national policy, as set out in paragraph 53 of the National Planning Policy Framework. This policy requires that all Article 4 directions should cover the smallest geographic area possible. Where they relate to a change from non-residential to residential use, they should be made only to avoid wholly unacceptable adverse impacts. All other Article 4 directions should be necessary to protect local amenity or the well-being of an area. Local authorities must notify the Secretary of State when they make an Article 4 direction.
When it is considered that an Article 4 direction as made by a local authority does not comply with national policy, officials have worked with the local authority to agree a revised Article 4 direction. Between 1 July 2021, when there was a change in national policy, and 3 May 2023, modifications have been made to Article 4 directions from 10 local authorities to ensure that they comply with national policy. I hope that noble Lords will be reassured that there is consistency in Article 4 directions that is ensured by the statutory process, policy and guidance. The Secretary of State exercises his power to intervene where there are clear reasons to do so, and in a consistent and measured way. With these reassurances, I hope that noble Lords will agree that Amendment 312J is not necessary.
To conclude, I hope that I have said enough to enable my noble friend Lord Northbrook to withdraw his Amendment 312 and for the other amendments in this group not to be moved when reached.
Lord Northbrook (Con)
My Lords, I listened carefully to the Minister’s reply. I should like to say straightaway that I applaud the useful overall relaxation in permitted development rights. I take her point and that of my noble friend Lord Bellingham that there could be problems in high streets with my proposed permitted development BB1. I still believe that in residential areas it is important to propose change. I am noting some support from the Benches opposite. I should like maybe to recraft the amendment so that perhaps residents’ associations could have a say in residential areas.
Lord Bellingham (Con)
Before my noble friend withdraws his amendment—once he has done so, I would be unable to speak again—I was disappointed when the Minister said that the amendment was flawed, whereas Amendments 312F and 312J were fit for purpose but not flawed. Just because she does not agree with it does not mean that it is flawed. The amendment was well drafted and perfectly sustainable.
There is a possible compromise to be had here because we do not, as my noble friend pointed out, want to do anything to curb enterprise investment and wealth creation in the high street, but we want to try and protect those residents in a small number of residential areas where there might be this particular problem. Perhaps some adjustment could be made so that, if there is a potential permitted change of use and permitted development in a residential area that could lead to all sorts of disturbance and people’s quiet livelihoods being put at risk, maybe there could be an argument for local residents going to the council and asking for the proposal to go through the planning system. Perhaps my noble friend and I can come back to this on Report and have a meeting with the Minister in the meantime so we can go through it in more detail.
Lord Northbrook (Con)
I thank my noble friend Lord Bellingham. It may be that we can craft a new amendment whereby, if there is a recognised residents’ association, some consultation process should be able to take place on the matter. In the meantime, I beg leave to withdraw my amendment.
Lord Kennedy of Southwark
“Chief Planning OfficersThe Secretary of State must publish guidance for local authorities on the appointment of Chief Planning Officers.”Member's explanatory statement
This is to probe the role of Chief Planning Officers.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, it is good to be back doing local government matters again and I promise not to raise leasehold issues. I start with some declarations. I am a vice-president of the Local Government Association, chair of the Heart of Medway Housing Association and non-executive director of MHS Homes Ltd. I noticed that the Government Chief Whip came in and it reminded me of the dreaded Housing and Planning Act that we debated for many weeks and months some time ago. I thought of my dear friend Lord Beecham, who is retired from the House.
Lord Foster of Bath (LD)
My Lords, I am happy to support the amendments that have just been moved.
I remind the Committee that in earlier debates we spent quite a lot of time on the importance of creating an environment that is clean and healthy for people to live in—the noble Lord, Lord Best, in particular encouraged us to do that—while earlier today we heard from the noble Baroness, Lady Young of Old Scone, about the vital need to protect woodland and biodiversity more widely. The Minister responded that none of this required her amendments because, he pointed out, the planning system was there and the planners could be “proactive” in using tree preservation orders and measures regarding biodiversity powers.
That is all well and good, but with one problem: the vast majority of councils responsible for taking these proactive measures are short of planners. There is a huge shortage. Where we have an amendment that relies on there being sufficient skills, resources and capabilities to deliver all these things, we already know from the research that has been done that there is a significant shortage. Noble Lords do not have to listen to me to know that; the chief planner in the Minister’s own department has said categorically that there are not enough planners in local government in England. Joanna Averley went on to say, at the end of last year, that the department did not have the funds to provide resources for there to be more planners. My question for the Minister is: what is going to be done to increase the number of planners to carry out all the work that he keeps referring to and which will come about as a result of the Bill before us?
I want to place on record a huge tribute to the RTPI for the work it is doing to try to improve skills. It has its degree-level apprenticeship scheme, as I am sure the Minister is aware, and a number of other measures, but we are in a situation where it is now said that planners are like gold dust.
The situation is compounded by a further problem. Another amendment talks about what the role of chief planning officers should be. Again, that would be well and good if there were any chief planning officers to have a role. The truth is that we now have a situation where one-quarter of councils in England do not have a head of planning reporting directly to a chief executive. There is a real shortage, which has the knock-on implication that there tends not to be a career structure to encourage people to enter at the bottom end. The shortage of planners is exacerbated by the shortage of chief planning officers.
I want to use this amendment as an opportunity gently to ask the Minister what the Government’s plans are to resolve the resource shortage, which we do not need a review of because we already know it is there. I look forward to hearing what the Minister has to say.
Lord Lansley (Con)
My Lords, at this late hour I do not want to speak at any great length. I declare an interest as chair of the Cambridgeshire Development Forum. In that context, we are acutely aware of the shortage of planners in local authority planning departments, despite the efforts made, not least by Cambridge City Council and South Cambridgeshire District Council in bringing together their two planning services to try to ensure efficiency in both planning and the use of resources.
There is a shortage, so we looked at working with the RTPI’s young planners group and with Anglia Ruskin University, so that some of those degree apprenticeship placements would be in Cambridge, in addition to those in Chelmsford. That might bring more of those young planners into the Cambridge area, where we hope they will stay, working in businesses and local authorities locally.
One thing we have looked at, which is possible but not easy to do, is the development community entering into, effectively, area-wide planning performance agreements with a local planning authority. Such planning performance agreements are entered into generally in relation to individual developments and can be the subject of additional charges for things such as pre-application advice. Of course, that is purely on a cost-recovery basis. Once you begin to attribute charging and costs to individual developments, even though from the planning authority’s point of view it does not influence the outcome of any of the decision-making, there is a risk that that is what people perceive to be the case.
To try to avoid the risk of any attribution of resources to results in terms of the integrity and transparency of the planning decision-making, we and the development community want to look at the ability to assist in resourcing planning for major developments in the area, and to do so in a way independent of the individual applications and the individual developer. I hope that, when Ministers think about how we might increase resources, they will recognise this as one possible arrangement.
Baroness Twycross (Lab)
My Lords, I declare an interest as London’s Deputy Mayor for Fire and Resilience and chair of the London Resilience Forum. I just want to say, briefly, that I completely agree with my noble friend Lord Kennedy, particularly on Amendment 504E. I got quite excited when he showed it to me. If an amendment can be described as exciting, this one would match that criterion.
An office for risk and resilience would provide a focus and play an invaluable part in ensuring that this country is better prepared to deal with the many risks we face, not least in relation to climate change. If we need to do anything through this legislation, it is to ensure that the buildings and infrastructure being built now are still fit for purpose in a decade, two decades or 50 years’ time. At the moment, we cannot guarantee that this is the case. We should note that resilience is particularly relevant to the concept of levelling up, as inevitably those individuals or institutions with better resources are inherently more resilient. I urge the Minister and the Government to consider this amendment seriously.
Earl Howe (Con)
My Lords, this group of amendments concerns chief planning officers, local authority resources and capacity, and risk and resilience. I welcome the discussion that has taken place on these important issues.
Amendment 312B, in the name of the noble Baroness, Lady Taylor, and spoken to by the noble Lord, Lord Kennedy, would require the Secretary of State to publish guidance for local authorities on the appointment of chief planning officers. I assure noble Lords that the Government recognise the importance of effective leadership in local planning authorities—someone who can raise the profile of planning in local government, drive a strong vision for what places aspire to and ensure that this is integrated across council functions.
However, to do this effectively we need a flexible approach that recognises the circumstances of individual authorities. In that context, issuing guidance for all local planning authorities on the appointment of chief planning officers would be undesirable. Instead, we would encourage local authorities to fill these leadership roles in a way that best suits their approach to tackling their areas’ challenges and priorities.
Our approach is in keeping with the existing legislative framework. Excluding a select number of statutory posts, Section 112 of the Local Government Act 1972 allows an authority to
“appoint such officers as they think necessary for the proper discharge by the authority”
of its functions and for carrying out commitments on behalf of other authorities. That is surely right; it should be a matter for their discretion. Having said that, I shall refer in a moment to the wider programme of support that we are developing to ensure that local planning authorities have the skills and capacity that they need to create better places and provide a good service to applicants.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank all noble Lords who spoke. The noble Lord, Lord Foster of Bath, made an important point about insufficient numbers of planners in local authorities. A few years ago, I was a member of Lewisham Council, and we had that problem day in, day out—you saw that with residents. But a shortage of planning officers was not a problem when I was a member of Southwark Council in the 1980s, so something has happened, and the Government have to address that.
The noble Earl made a point about having increased the planning of things, and that is true, but more needs to be done because there is a huge problem here. We are sitting here again, debating another Bill containing bits about planning. I have lost count of how many planning Bills we have had in the 13 years I have been a Member of this House. One after another comes along, and we seem to debate similar issues and problems, but we are not dealing with the problem.
The noble Lord, Lord Lansley, made us aware of similar problems in the Cambridgeshire area. His point about getting resource from the developers, but it not being connected to a development, should be looked at: you could bring extra resource into departments that way, enabling more planners to be recruited. So the Government should look at that, as one way to enable more resource to be brought in.
I am so pleased that my noble friend Lady Twycross made an intervention—she is the deputy mayor for fire and resilience in London, and she is hugely experienced in this area. It was good to hear her contribution. Although it was good to hear that the Government are doing certain things on resilience, there are bigger issues: local resilience forums and how they operate and work with government need to be looked at. People such as my noble friend, who has worked on that in London for many years with the Mayor of London and government, certainly should be listened to on those issues. With that, I withdraw Amendment 312B.
Member’s explanatory statement
This is to probe whether the infrastructure levy could be optional.
Baroness Taylor of Stevenage (Lab)
My Lords, I am almost sorry to come to a very complex group of amendments at this stage of the evening, but this is an important part of the Bill. We have had lots of discussions about housing, and this is about how the infrastructure levy fits into that picture. The key issues to which this group responds were powerfully set out by my noble friend Lady Warwick earlier today, and they have been discussed extensively in earlier groupings.
The significant number of amendments in this group reflect our discussions about the ability of the levelling-up Bill in general, and the infrastructure levy in particular, to deliver the levels of affordable housing needed. I apologise for the repetition, but this is not helped by the Government’s abandonment of national housing targets, under pressure from Back-Benchers in the other place. There remain a number of unresolved issues in relation to the provision of affordable housing with the infrastructure levy, and a great deal more clarity is needed about just how IL, Section 106 and CIL fit together to deliver affordable housing for the future. It is vital that we all understand this so that we can begin to make an impact on the housing crisis.
Is it the case that the first call on levy proceeds is to be affordable housing, because the costs of affordable provision are to be netted off from the levy payment, with what is left over being used for all the other infrastructure required? This residual may not be sufficient to pay for all that is needed. Just in today’s debates, we have heard about so many different aspects of funding that will be needed from the infrastructure levy. In practice, local planning authorities may find themselves juggling affordable homes and infrastructure to decide what the levy can fund, as they do now with Section 106 and CIL.
Is it the case that, where infrastructure is delivered in kind, it is subject to the levy backstop amount to ensure that any shortfall in the value of the infrastructure delivered in kind is made whole to the full infrastructure levy liability with cash? Homes for the North, in its very helpful briefing, cited Department for Levelling Up, Housing and Communities figures that developer contributions funded 47.3% of all affordable housing provision between 2021 and 2022. DLUHC figures also show that in the year before the pandemic, nearly 80% of Section 106 developer contributions were generated to support affordable housing provision. Therefore, we must have clarity going forward about how this will be funded for the future.
With construction costs subject to the significant inflation we have heard about, and with the financial burden on housing authorities for retrofitting energy-efficiency measures to social homes, the ability to fund new social and affordable housing through developer contributions becomes ever more challenging. Homes for the North believes that, even if the infrastructure levy is prioritised for affordable housing, its research demonstrates that basing the IL on historical levels of provision through developer contributions will not deliver levelling up but will replicate spatial inequalities.
Our Amendment 313 is a probing amendment to determine the extent to which the infrastructure levy is optional for local authorities. Leaving the other two regimes of CIL and Section 106 in place as the infrastructure levy is introduced has the potential to increase the complexity of the landscape with the associated legal process and valuation challenges. There is also a danger that the new system will take time to introduce and bed in, and therefore the potential reduces for achieving affordable homes to the scale and in the timescale we need through this route as the transition occurs.
I understand that the Government wish to adopt a test and learn approach to the introduction of the infrastructure levy—we heard from the Minister about that this afternoon—but would it not have been preferable to have tested that before putting it into law, instead of afterwards? With all three systems remaining in place, is there likely to be further uncertainty for developers that will capitalise on the difference in implementation from place to place? Noble Lords across the Committee will be concerned, as we are, about any delays this may introduce to the essential delivery of housing to mitigate the housing crisis.
My Amendment 317 refers to the introduction of pilot schemes for the infrastructure levy—although this is probably shutting the stable door after the horse has bolted—as we feel that it is essential to see whether there are unintended consequences of the introduction of the IL, and to ensure its impact is evaluated and assessed before it is rolled out across the country.
Amendment 321 in the name of my noble friend Lady Hayman attempts to resolve the confusion about whether it is intended that the infrastructure levy delivers the infrastructure discussed under a previous group of amendments—the first group—and then Section 106 continues to deliver the affordable housing required from the development. This is not clear from what is in the Bill about the infrastructure levy.
We absolutely agree with my noble friend Lady Armstrong that there must be a distinction between the Government’s term “affordable housing” and social rented homes. Her Amendment 322, and Amendment 323 in the names of my noble friend Lady Hayman and the noble Lord, Lord Shipley, refer to that point. As we have discussed previously, local authorities know their own housing need best and must be able to specify that they need social rented housing where that is appropriate.
There has been much debate in local government and planning communities about the difference between levy-funded infrastructure and integral infrastructure, and in what circumstances developers can be required to deliver on-site affordable housing and/or in-kind funding for off-site housing. Amendment 326 in the names of my noble friend Lady Warwick, the noble Baronesses, Lady Watkins and Lady Thornhill, and the right reverend Prelate the Bishop of Chelmsford would place in the Bill the right for local authorities to determine the delivery of on-site housing through an in-kind levy payment. We support the proposition of exemption for developments containing 100% affordable housing to have special treatment under the infrastructure levy regime—Amendment 327 and our Amendment 328 refer to this.
The noble Lord, Lord Carrington, and the noble Baroness, Lady Bakewell of Hardington Mandeville, are proposing a similar exemption from the infrastructure levy liability where this relates to farm buildings that support food security. We agree with this where such buildings would be likely to accrue an infrastructure levy, as it is essential for food security that farms are able to diversify.
Amendment 332 in the names of the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Thurlow, would make strategic housing and market assessments compulsory and link them to the setting of the infrastructure levy. I confess that I am a big fan of strategic housing and market assessments. We understand the principle behind this amendment, as it would put rigour into the process of determining what housing is needed and the role that the infrastructure levy plays in delivering that. It will not be solely the responsibility of the infrastructure levy to deliver affordable housing though, so we look forward to hearing from noble Lords about the benefits of making this compulsory. We are generally very supportive of SHMAs, but they can be complex in local authority areas where land availability is limited, and planning for affordable homes has to take into account travel-to-work areas across more than one local authority boundary.
Baroness Warwick of Undercliffe (Lab)
My Lords, this is the second group of amendments today on the new infrastructure levy. While there is clear scope to reform and improve the existing system for developer contributions, it is none the less responsible for a huge proportion of new affordable and social homes. As its proposed replacement, the infrastructure levy represents, as I said in the earlier debate, a radical shift in how such housing will be funded and delivered.
There are 4.2 million people currently in need of social housing in England—I do not think that fact can be repeated too often. Our efforts to house them have so far been abysmal. Against this backdrop of acute housing need, changes to the planning system must at a minimum protect current levels of new affordable housing. In the earlier debate, the Minister emphasised that the Government aim to do just that but also said that these were decisions for local authorities and offered little confidence that this aim could be guaranteed.
The Daily Express on 29 April had a startling statistic that nine in 10 local authorities failed to build a single council house last year and no region in England saw an increase from 2021. As many as five locations in England did not complete a single social home last year, including the City of London. My noble friend Lady Taylor cited the evidence from Homes for the North, which provided us with an excellent briefing. Through its research with Liverpool University, it has shown that those most in need of levelling up, based on the Government’s own definition, are likely to have the least capacity to generate investment for affordable housing through the infrastructure levy, and it goes on to offer more data on that. The Minister expressed hope that more social housing would be built, but as targets are to be dispensed with and as local authorities and housing associations are clearly struggling to deliver any social housing at all, there is a singular lack of ambition to help the 4.2 million people in real need.
I have three amendments in this group—Amendments 326, 327 and 334. Each of them seeks to strengthen protections for affordable housing in this legislation and ensure that the infrastructure levy does not lead to a net loss of affordable housing. I am pleased to have received support for the amendments from the Labour and Lib Dem Front Benches, the right reverend Prelate the Bishop of Chelmsford and the noble Baroness, Lady Watkins of Tavistock.
I move to my first amendment, Amendment 326. One of the main concerns with the infrastructure levy, raised by stakeholders from across the housing sector, is the risk to on-site delivery of affordable and social housing. While imperfect, Section 106 has facilitated a well-integrated mix of housing tenures to support households of different sizes, ages and incomes. We have a proud history in this country of people living side by side. These mixed communities are a rare success story in housing and planning policy and must be retained if we move from Section 106 to the levy. But by moving us away from an in-kind system of affordable and social housing, as with Section 106, towards a financed-based system, the infrastructure levy risks undoing important progress in this area.
It is welcome that the Government have acknowledged this risk. In a policy paper published alongside the Levelling-up and Regeneration Bill on 11 May 2022, the Government committed to:
“Introduce a new ‘right to require’ to remove the role of negotiation in determining levels of onsite affordable housing. This rebalances the inequality between developers and local authorities by allowing local authorities to determine the portion of the levy they receive in-kind as on-site affordable homes”.
This was a very welcome commitment. In their recently published technical consultation on the infrastructure levy, the Government again confirmed their intention to bring forward a mechanism for on-site delivery. However, it is disappointing that not a single mention of the right to require mechanism is made in this Bill. Ministers have said it will instead be introduced via secondary legislation. This mechanism for on-site delivery is a highly significant aspect of the new levy and should not be left out of the Bill altogether. It should be subject to proper parliamentary scrutiny and a rigorous consultation and piloting process. I hope the Minister will comment on that.
My Amendment 326 would place a duty on the Government to bring forward infrastructure levy regulations which would introduce a mechanism for the delivery of on-site affordable housing as an in-kind levy payment. Put simply, my amendment would ensure that the Government abide by their own stated policy intentions and hold Ministers to their commitment to safeguard the future of mixed communities.
Again, this amendment does not seek to transform radically the design of the levy; it would simply put stated government policy in the Bill. It does not bind the Government to an onerous or cumbersome interpretation of the right to require; it merely ensures that such a mechanism is introduced. For these reasons, I hope that the Government will consider supporting this amendment.
Amendment 327, coupled with Amendment 328 in the name of my noble friend Lady Hayman of Ullock, seeks to place in primary legislation clear exemptions from payment of the infrastructure levy for registered providers of social housing. My amendment would provide for an exemption from liability to pay IL in respect of a development which contains 100% affordable housing. I support also the amendment tabled by my noble friend Lady Hayman which would exempt developments containing 75% affordable housing. Charging levy rates against such developments would clearly disincentivise new affordable housing and undermine the levy’s stated purpose. There are already such exemptions in place in the current system for developer contributions, most notably in the community infrastructure levy.
The Government have indicated that they will introduce such an exemption. It would be preferable to see this commitment included in primary legislation. At Commons Committee stage, the Housing Minister confirmed that the Government
“do not expect to charge the levy on exclusively affordable housing developments; we will explore that matter further in consultation”.—[Official Report, Commons, Levelling-up and Regeneration Bill Committee, 6/9/22; col. 638.]
It would be preferable to see this commitment in the Bill.
No argument has been forthcoming about why it is preferable to introduce such an exemption via regulation. This is particularly concerning as an exemption is provided for charities in new Section 204F, to be inserted by Schedule 11, which could encompass most registered providers of social housing. Further clarification is required as there is a risk of overlapping exemptions and confusion about criteria for housing associations. I hope the Minister can provide more clarity and certainty about the Government’s intention to bring forward exemptions from the levy for affordable housing.
My Amendment 334 would strengthen the requirement for local planning authorities to set infrastructure levy rates at a level which would not result in a loss of affordable housing. It would ensure that the infrastructure levy delivers baseline levels of affordable housing, thus removing the risk of a net loss of affordable housing under the new system.
In a public letter to the Secretary of State in February, 19 leading organisations from across the housing sector set out significant concerns about the impact that the proposals for a new infrastructure levy will have on the supply of new affordable housing. Signatories included Shelter, Crisis, the Church of England, the National Housing Federation and the Greater London Authority.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, I will speak—briefly again, I hope—in support of Amendments 326, 327 and 334 in the name of the noble Baroness, Lady Warwick, and Amendments 344 and 350 in the name of the noble Lord, Lord Best, which have also been supported by my right reverend colleague the Bishop of Chelmsford.
The Church of England is committed—as noble Lords have just heard—to working to increase the provision of social housing, and these amendments would greatly improve the infrastructure levy to ensure that it is working to generate a good supply of truly affordable housing.
As we have heard, in its current form the infrastructure levy risks a serious reduction in the delivery of affordable housing and homes for social rent through the planning system. Despite this concerning impact, detail on how the proposed levy would work remains very thin. There are a number of fundamental issues that need to be addressed. These amendments would be a step in the right direction to doing so.
Amendment 326 introduces a mechanism for the delivery of onsite affordable housing and an in-kind levy payment, which would allow local authorities to ensure that their local housing needs are met. Amendment 327 excepts developments that contain 100% affordable housing from liability to pay the infrastructure levy, which would allow for the provision of affordable housing to go unimpeded by any diversion of funds, and also incentivise developers to invest in affordable housing plans.
Amendments 344 and 350 in the name of the noble Lord, Lord Best, would introduce critical improvements to the infrastructure levy. Tying the application of the infrastructure levy to the level of affordable housing requirement identified in the local development plan, as Amendment 344 would do, is a necessary step to ensure that the levy truly addresses local housing needs. Linked to this, Amendment 350 would ensure that at least 75% of the levy would be used to meet such local affordable housing needs as identified by local development plans. As we have heard, there are currently 4.2 million people in need of social housing in England. It is crucial that the infrastructure levy and the accompanying changes to the planning system improve the delivery of new affordable housing.
Lord Foster of Bath (LD)
My Lords, I begin by congratulating the noble Baroness, Lady Taylor, on her tour de force in going through all these amendments. I have no doubt that the Minister will attempt to do exactly the same at some future point as she goes through all our deliberations, and I have no intention of attempting to match either of them. I wish merely to say how important Amendment 322 in the name of the noble Baroness, Lady Armstrong, and Amendment 323 in the names of the noble Baroness, Lady Hayman, and my noble friend Lord Shipley are, and how supportive we are of them. They seek to define “affordable housing” for the purposes of the infrastructure levy as social rent. We are also very supportive of the amendment so ably spoken to by the noble Baroness, Lady Warwick—as is illustrated by the fact that my noble friend Lady Thornhill has added her name to it—and the whole issue of affordable housing, which we have touched on so many times. It is great that she has spoken to her amendment, and we are fully supportive of it.
I raise two amendments solely to hear the Minister’s response to them, because that is what we are interested in hearing. On behalf of the noble Lord, Lord Carrington, and with his permission, I will speak to Amendment 330, which, in effect, proposes the removal of agricultural buildings from the infrastructure levy. The infrastructure levy now being proposed is not exactly but in part a replacement for the community infrastructure levy. I am sure that many noble Lords will be aware that the application of the community infrastructure levy to agricultural property was somewhat hit and miss. Frankly, nobody knew whether they were in or out; some councils did, some did not, and so on. The Minister is nodding in agreement. The problem is that we do not have the proposed secondary legislation, so we have no idea quite how agricultural buildings will apply under the proposed infrastructure levy. Of course, we recognise that many of them—such as livestock buildings, grain storages, slurry tanks and farm reservoirs—are quite large but have very little structure; however, they may be very heavily hit. Given that your Lordships have recently debated the importance of farmers and the difficult times they are going through at present, it may be a good idea to put on the record a clear determination that such properties be excluded from the infrastructure levy. That is what the noble Lord, Lord Carrington, is proposing.
The only other amendment I want to raise is Amendment 356 in the names of my noble friends Lord Teverson and Lady Bakewell. It suggests that it should be possible to retain within the new system Section 106 agreements in certain circumstances. When looking at the whole area of biodiversity-type measures, you recognise that the great advantage of Section 106 agreements is that, unlike the infrastructure levy proposals, they are directly tied to the actual land where the development takes place, rather than being a payment for improvements that may happen somewhere in the neighbourhood. The second advantage is that they are not a one-off payment, as the infrastructure levy is proposed to be; they can be payments made over a long period.
Therefore, if you are seeking to develop some sort of wildflower arrangement, some meadowland or a biodiversity scheme of one sort or another, it is recognised that those will take a very long time to develop and they are on a particular site. The benefit of this amendment is that the Section 106 agreement can be kept because it is tied directly to the specific land and can be funded over a long period to ensure that the development is successful. On behalf of my noble friend Lord Teverson, I make the case for Amendment 356.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I beg to move that the debate on Amendment 313 be adjourned.