Levelling-up and Regeneration Bill
Thursday 18th May 2023
(11 months, 2 weeks ago)
Lords ChamberLevelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 84-XIV Fourteenth marshalled list for Committee - (18 May 2023)
Baroness Taylor of Stevenage (Lab)
Madam Deputy Chairman, we spoke to our amendments in the previous session, so we move on to the debate on the other amendments.
Lord Thurlow (CB)
In the absence of my noble and learned friend Lord Etherton, I will begin this debate with specific reference to Amendments 332, 333 and 341.
The Deputy Chairman of Committees (Baroness Bull) (CB)
I remind the Committee that we are still debating the group beginning with Amendment 313, if any noble Lord wishes to speak on amendments within that group.
Lord Best (CB)
My Lords, I am sorry to move ahead of my noble friend. The amendments in this group go to the heart of an issue that has been of much concern among providers of social housing: will the Levelling-up and Regeneration Bill lead to more affordable housing—in particular, more social rented housing—or will the replacement of Section 106 agreements with the new infrastructure levy mean fewer new affordable homes? As the Minister has noted, the Government hope and expect the new infrastructure levy regime to result in
“at least as much, if not more”—[Official Report, 17/11/22; col. 1076.]
social housing. Most of the amendments in this group are trying to make sure that this aspiration becomes a reality.
The big picture is that the Government have maintained their overall target of 300,000 homes per annum, and repeated studies maintain that about a third of this total should be social housing—that is, housing affordable to the half of the population on average incomes and below. At a time of widespread concern that poverty and health disparities have worsened, housing policies can cause wider inequalities in society or be a means of reducing them.
Lord Etherton (CB)
My Lords, I will speak to my Amendments 332, 333 and 341. I am extremely grateful to the noble Lord, Lord Thurlow, for co-signing them. I entirely agree with much that the noble Lord, Lord Best, said. A whole variety of the amendments in this group are aimed at the same principle: how best to increase decent and affordable housing, particularly social rented housing, for those who so badly need it.
Amendments 332 and 333 concern the setting of infrastructure levy rates under new Section 204G of the Planning Act 2008, to be inserted by Schedule 11 to the Bill. Currently under that provision the only requirement in setting the infrastructure levy rates is to have regard to the desirability of ensuring that the level of affordable housing funded and the level of funding provided by developers is not less than before. That is simply not good enough.
As we all know, there is a critical shortage of affordable social housing. The Minister acknowledged this, most recently when answering a Question in the House on 25 April concerning the National Housing Federation’s report, Overcrowding in England, published on 19 April, particularly its finding that one in six children lives in overcrowded conditions. Shelter has reported that over 1 million households are waiting for social homes, and that last year 29,000 social homes were sold or demolished and fewer than 7,000 were built. It also says that there are now 1.4 million fewer households in England in social housing than there were in 1980. These are shocking facts and statistics.
Amendment 332 provides, as noble Lords will see from the Marshalled List:
“A charging authority must prepare and publish a Strategic Housing and Market Assessment specifying what affordable housing is needed within the area of the charging authority … The charging authority must publish a new Strategic Housing and Market Assessment every three years”.
Amendment 333 provides:
“A charging authority must set rates of IL at a level which, in conjunction with the exercise of such other powers as it possesses, is likely to provide not less than the amount of affordable housing specified in its Strategic Housing and Market Assessment over a three year period”.
The Bill would then continue as it currently does, ensuring that there is no lesser level of funding than before. I have specified a period of three years but would be very happy to discuss with the Minister and others whether that would be appropriate.
It would then be necessary to amend new Section 204N, which requires the charging authority to apply the infrastructure levy in funding
“the provision, improvement, replacement, operation or maintenance of infrastructure”,
which is a term defined to include a wide variety of things, from schools and medical facilities to open spaces and the mitigation of climate change. Those are all very worthy causes, but affordable housing is only seventh out of the 10 matters in the definition of “infrastructure”. There is no provision for prioritising one type of infrastructure over another, while the greatest need is plainly for decent and affordable social housing. To have the right and ability to live in a decent home is one of the most basic human rights. Giving priority to the need for affordable housing—more particularly, affordable social housing—is the purpose of Amendment 341, which would introduce into new Section 204N a cross-reference to new Section 204G as we propose that section should be amended.
Lord Thurlow (CB)
My Lords, I add my voice to Amendments 332, 333 and 341 from the noble and learned Lord, Lord Etherton, concerning affordable housing, which lies at the root of the Government’s responsibility to their citizens. As we have just heard, it is the duty of government to provide safety and security to its citizens and a roof over their heads. That responsibility includes, at the very top of the list, the needs of the homeless. It is important to remind ourselves that the definition of homeless here includes many of the most vulnerable in our population. They are citizens too, but current circumstances may cause them to question that.
Successive Governments have repeatedly failed to replace council houses sold into the private sector, and this reducing inventory of low-cost housing, however defined, continues against a background of increasing homelessness and need. The Government must somehow finance more affordable housing. These amendments, taken together, will assist in that objective.
Lord Carrington (CB)
My Lords, I support the amendments in the names of the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Thurlow. I declare my rural interests.
My particular angle of support relates to the importance of the provision of sufficient rural affordable housing, which is a huge gap in housing provision, as identified in two reports from the APPG for Rural Business and the Rural Powerhouse, of which I declare my membership. These reports concentrated on levelling up in the countryside and the impact of the cost of living crisis in rural areas.
Baroness Bloomfield of Hinton Waldrist (Con)
Forgive me; I may be mistaken, but I do not think that the noble Lord, Lord Carrington, was here at the start of this debate on the last occasion.
Baroness Bloomfield of Hinton Waldrist (Con)
I apologise; the noble Lord is not in my notes. I will accept his word that he was.
Lord Carrington (CB)
Citizens Advice and others have pointed to provision of rural housing being a growing problem and a significant barrier to the rural economy, as the average house price can be up to 10% of average earnings, compared with 7.4% in urban areas, excluding London.
Navigating the planning system has always been a problem in rural areas, and larger building providers have been the most successful. CPRE, the countryside charity, has pointed out that successful housing applications tended to be in a very narrow segment of the market—the upper to middle end, which does not favour renters, first-time buyers and affordable housing.
The Government are prioritising the development of brownfield sites, which is certainly laudable, but 87% of these are in urban areas and often in the south-east. However, the economic impact of small developments and, in particular, affordable housing in rural communities can make a huge difference in supporting businesses and communities in terms of employment and other activities. It would also assist with the growing problem of rural homelessness, as identified by Shelter and other charities.
These amendments make strategic housing and market assessments of affordable housing compulsory, and influencing the rate of the infrastructure levy would be of great benefit to the sensible provision of affordable housing in rural areas.
Lord Lansley (Con)
I want briefly to refer to the clause stand part notice tabled by my noble friend Lord Young of Cookham and I for a probing purpose. Clause 126 has the effect of retaining the community infrastructure levy in London and Wales, but I will not talk about Wales. We are leaving Wales out of it for these purposes. The clause retains the community infrastructure levy in London, alongside the introduction of the infrastructure levy. I understand that that is essentially because the mayoral CIL has been used for the provision of Crossrail and is expected to do so for years to come.
However, it has raised in our minds a question to ask my noble friend the Minister about whether the community infrastructure levy, which of course does not provide for affordable housing, can live alongside the infrastructure levy for a number of years. The technical consultation, which is to be concluded on 9 June, does not explain how the respective contributions are to be assessed in a combined fashion because they apply to different parameters of the development. That leads to the assumption that with a 10-year transition we are looking at many places across the country with a combination of community infrastructure levy obligations that have arisen in relation to developments over a number of years and past developments, alongside the introduction of the infrastructure levy. The technical consultation, to my reading, does not help us understand how these two things are going to be meshed together. Of course, many noble Lords tabled their amendments in this group before the technical consultation was published. It answers some of the questions, but not all of them, and I think this is one question that it does not quite answer.
Another question occurred to me while reading the technical consultation in relation to affordable housing. It does not yet provide certainty about whether contributions under the infrastructure levy may be regarded as an improvement on the situation where developers are able to negotiate or renegotiate their liabilities under Section 106. Developers are not engaging in negotiations simply because they can and therefore they do and local authorities do not give way simply because they ask for it. Circumstances change.
I am always burned by the fact of the October 2008 crash. In the space, literally, of weeks, the economic viability of many large-scale development projects changed dramatically. If you look at any system, including this system, and it cannot meet the test of what you would do under those circumstances, I am afraid it does not help. Renegotiation of the contributions is one solution. It might be said that if the market price and the gross development value of a large site crash in the way they did in October 2008, the infrastructure levy crashes as well. The problem then is: how is the affordable housing going to be funded? How is the other infrastructure to be funded?
I do not have answers to all these things, but my noble friend and I will perhaps have an opportunity in the next group to talk a bit more substantively about the infrastructure levy and what we might do about it, but that does not answer the question. If affordable housing presently often suffers by being a residual after other Section 106 obligations have been met, and if under the infrastructure levy it becomes, in effect, a right to require and it is elevated above other requirements, there will be a great deal of difficulty in local communities about the fact that there are many other obligations that the infrastructure levy has to meet that may not be able to be met if the gross development value comes down or if, for example, the affordable housing right to require and the tenures that have to be provided lead to a much higher cumulative discount needing to be paid. We have to have some flexibility built into the system, and the risk at the moment is that that is not presently available in the way that we have understood it in the past. We can strengthen local authorities, and in the next group I hope we can talk about how that might be possible.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, Amendments 313 and 317 propose to make the levy voluntary for local authorities or to introduce it through a pilot system. I acknowledge that the reforms we are proposing will need to be implemented in a sensible manner. There are problems with the existing system, but it is important that we do not introduce new issues. We want to ensure that the new levy delivers at least as much affordable housing as the existing system, and that is why we are currently consulting on the levy and intend to consult again on the draft regulations. We want input from across the private and public sectors, and we will consider the feedback carefully as we proceed. As I mentioned previously, the new levy will be introduced through a process of test and learn and a phased-out programme. I hope that this will provide the noble Baroness, Lady Taylor, the reassurance that further piloting powers are not needed.
In terms of introducing the levy as a voluntary system, we are seeking to create more certainty across the whole system of developer contributions. We recognise that the levy must be introduced carefully to ensure that it will deliver the intended results. That is the purpose of the test and learn. However, if we do not aim for a unified system, we will dilute the potential benefits. I hope this provides the noble Baroness, Lady Hayman, with sufficient reassurances to withdraw Amendment 313.
Amendments 364 and 364A are concerned with how the Government will assess the delivery of affordable homes under the new infrastructure levy. Given the length of time of the proposed rollout, requiring an assessment of the levy 120 days after the Bill is passed, as proposed in Amendment 364, provides an insufficient amount of time meaningfully to assess the impacts of the levy, but I reassure the Committee that during the rollout the Government will work closely with stakeholders to monitor the impacts of the levy. That includes monitoring our commitment to deliver at least as much, if not more, affordable housing.
In addition, the department has commissioned a scoping study to develop an approach to the evaluation of the planning elements of the Levelling-Up and Regeneration Bill, which we expect to report following Royal Assent, and the full evaluation informed by the findings of the scoping study will then be commissioned. I hope this gives reassurance to the noble Baroness, Lady Taylor, and that she will feel able not to move her amendment.
On Amendment 364A, first homes were a 2019 manifesto commitment and are already successfully established in the market through a grant-funded early delivery programme. Outside that programme, the first homes discount is funded by developers as part of their contribution through planning obligations. The Government currently publish information about the delivery of first homes through both the early delivery programme and planning obligations in our annual affordable housing supply statistical release, and I reassure the noble Baroness, Lady Hayman, that we will continue to do so. We will work closely with local authorities throughout the phased test-and-learn implementation programme to monitor the Government’s key objective to maintain affordable housing supply. This will include but will not be limited to first homes. I hope I have provided the noble Baroness with sufficient reassurance not to press that amendment.
Lord Foster of Bath (LD)
I am sorry to interrupt the Minister. She has given a number of examples. Will the biodiversity net gains required in the Environment Act 2021 be included in the exceptions she has just listed?
Baroness Scott of Bybrook (Con)
I think I have just said that we are currently consulting on what will be in those. I would prefer to wait until after that consultation and then we will know what is going to be in them.
Amendments 332 and 333 seek to require a local authority to prepare an assessment of its affordable housing need and for the infrastructure levy rates to be set at a level that will meet this need in full. We must recognise that the total value that can be captured by the levy, or indeed any system of developer contributions, will not necessarily match the costs of meeting the entire affordable housing need of an area. Revenues will depend on the value of development that comes forward, and that will not always match need.
Nevertheless, new Section 204G(2) in Schedule 11 requires that charging authorities, when setting their rates, must have regard to the desirability of ensuring that affordable housing funded by developer contributions equals or exceeds present levels. That will ensure that affordable housing need is accounted for when levy rates are set. Furthermore, charging schedules will be subject to scrutiny by public examination to ensure that it does.
I want to make it clear that the list of infrastructure issues is not in priority order. Although affordable housing may be seventh on the list, that does not make it a priority. That list is also not necessarily complete.
As noble Lords will no doubt be aware, strategic housing market assessments or similar documents are currently part of the evidence base used to prepare a local plan. These are required as a result of national policy contained in the National Planning Policy Framework, rather than in primary legislation. Under the new system for preparing local plans, local authorities will continue to be required to prepare evidence regarding different types of housing need, including affordable housing. That will inform not only the local plan but the infrastructure delivery strategy.
I agree that it is important that the levy is based on up-to-date evidence of affordable housing need. It is the intention that local plans, charging schedules and infrastructure delivery strategies are prepared together. However, during the transition period, this may not always be possible. That is why our preferred approach is to use regulations and guidance to set out how evidence-based documents, including evidence on different types of housing need, should be considered. I hope I have given reassurance to the Committee that the provisions in the Bill will enable levy rates to be set with proper regard to affordable housing need, and that the noble and learned Lord, Lord Etherton, will feel able not to press his amendment.
Amendments 334 and 334A have the commendable purpose of ensuring that the levy meets its aims of delivering at least as much affordable housing as the current system, if not more, or otherwise addressing locally identified need for affordable housing. The Bill allows regulations to make provision about matters to be considered by charging authorities when setting rates, including the desirability of ensuring that affordable housing funded by developer contributions equals or exceeds present levels. This will ensure that affordable housing need is accounted for when rates are set but, if the Government are overly prescriptive about requirements, the development of an area could become unviable. That is because affordable housing need may exceed what can be captured through the levy. In such circumstances, rates would need to be set at such high levels that neither affordable housing nor market housing would come forward.
The Bill has been drafted carefully to enable local authorities to find the right balance when setting rates and capture as much value as they can while maintaining viability. As I have said, local authorities’ infrastructure levy charging schedules will be subject to public examination, meaning thorough scrutiny of how and why levy rates are set at a particular level. The infrastructure delivery strategy will also be subject to examination, alongside either a local authority’s charging schedule or its local plan. We envisage that the infrastructure delivery strategy will set out the proportion of levy payment that an authority will require to be delivered in kind as affordable housing. I hope that this provides the noble Baronesses, Lady Warwick and Lady Taylor, with sufficient reassurance not to press these amendments.
Amendments 340, 341, 344, 344A, 349 and 350 are all concerned with how local planning authorities should spend levy proceeds. With regard to Amendment 340, the infrastructure levy is an important tool to support sustainable development objectives at the local level. There is an existing requirement for local authorities, when exercising any function in relation to local plans, to do so with the objective of contributing to the achievement of sustainable development. This is set down in Section 39 of the Planning and Compulsory Purchase Act 2004 and will remain in the new plan-making system.
To create sustainable development and successful places, it is important that the infrastructure is appropriately planned for. Contributions from developers are a key tool in mitigating the impacts of new development, alongside wider government funding. The Bill provides a flexible framework to allow local authorities to decide which infrastructure projects they spend the proceeds on. When making such decisions, the Government expect local authorities to fulfil their functions by having regard to all their legal requirements in the round—for example, contributing to the achievement of sustainable development.
I turn to Amendments 341 and 344. As I hope that I have impressed on the Committee, we have designed the levy with the aim of delivering at least as much affordable housing as the current system of developer contributions, if not more. Should the levy generate more revenues than at present, local authorities would be able to choose to direct those additional revenues to meeting their local affordable housing need. Nevertheless, local authorities will need to balance this objective of affordable housing delivery with the levy’s other objectives, such as supporting the development of new roads and medical facilities. We think it is right that local authorities, which know their areas best, are best placed to make local decisions in balancing funding for matters such as affordable housing and other local infrastructure need. I hope noble Lords will therefore feel able not to press these amendments.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful to all noble Lords who took part in this debate—over two days, because we had a previous day on this group. When I introduced our amendments, I said that a number of issues remain in relation to the provision of affordable housing with the infrastructure levy, and that a great deal more clarity was needed about how the infrastructure levy, Section 106 and CIL will fit together to deliver the affordable housing we all know we will need. I am not sure we have that clarity yet.
I am grateful to the Minister for, once again, giving a detailed response to this group, but it is clear that we have not yet got to the point where we understand the relationship exactly. The Minister referred to consultation, but some of us find it difficult to understand why that is taking place while the Bill is going through the House. Had we known the outcome, it would have provided the evidence base needed to back up what is in the Bill. So we will wait to see what the consultation says.
The redefinition of “affordable housing”, which was referred to time and again in this and other groups—the noble Lord, Lord Best, referred to it—is an important point and I hope we will come back to it. The Minister mentioned the juggling or balancing act that local authorities will have to perform with housing and other infrastructure. It has always been incredibly difficult, but with the housing crisis being where it is, I suspect it will get ever trickier. So there is still a lot for local authorities to do.
The noble Lord, Lord Best, made a key point about implementation of the infrastructure levy over a long period, so I hope we can get some clarity before Report on what that means. How long will it take and what will the relationship be between Section 106, CIL and the infrastructure levy? Will they taper off or will they be switched off on a certain date?
In the earlier debate on these amendments, my noble friend Lady Warwick made a powerful speech about the housing element. She pointed out that 4.2 million people are in need of social housing, and gave the startling fact that
“nine in 10 local authorities failed to build a single council house last year”.—[Official Report, 3/5/23; col. 1656.]
This threw into sharp relief the challenges associated with the infrastructure levy.
My noble friend also spoke about the delivery mechanism for Section 106 and the “right to require” commitment from the Government. The Minister has given us a bit more detail about that today, which is helpful, but we will want to carry on looking for that. Since my noble friend had raised it, I was very grateful to hear from the Minister about the exemption where sites have 100% affordable housing.
Lord Lansley (Con)
My Lords, we remain with the question of the infrastructure levy in this part of the Bill. The purpose of debating the question of whether Clause 124 should stand part is to allow for a debate on the principles of the infrastructure levy. Curiously, it seems we will have a debate on the principles after we have discussed some of the detail—but let us not worry too much about that; we will no doubt return to all these subjects on Report anyway.
Although this is the levelling-up Bill, this clause is the not-levelling-up provision in it, since the Government’s technical consultation said that the infrastructure levy could lead to a possible increase in
“geographic inequalities already evident in the current system”.
We therefore cannot treat the infrastructure levy as tackling one of the central issues we face: that, while there is a large amount of development value being created in some parts of the country that can fund infrastructure and affordable housing, whether it does or does not, in other parts of the country it is not available at all.
That is exacerbated by the gross development value as well as the simple fact that, in some parts of the country, there is a relative dearth of brownfield sites—for example, in the east of England, my own area. That means that when development takes place on greenfield sites, the gross development value—netting off the build cost and existing use value—can be large. In many other parts of the country, there are more brownfield sites and, by the time you have calculated a lower gross development value and taken off the build cost and existing use value—both often higher for a brownfield site—you are left with very little of the gross development value available for the infrastructure levy.
There will, I am afraid, be a serious potential conflict between the purposes of the infrastructure levy. The community will look at it and say, “This will provide our schools, healthcare infrastructure, flood defences, open spaces and sport and recreation facilities” and all sorts of other potential benefits, looking at the amendments, as opposed to affordable housing. Under the existing system, two-thirds of developer contributions go to affordable housing. We do not know, but the pressures will, if anything, be higher rather than lower. That may lead to a very serious constraint on the amount of infrastructure levy available for the purposes that the infrastructure delivery strategy sets out.
I do not pretend that there is a completely different and better answer than what the Government are proposing. However, I am a bear of very simple brain; at Second Reading, I referred to the simple proposition that, on one hand, you have Section 106, by means of which developers are required to provide the infrastructure—in my view, they should also provide the affordable housing that is to be integral to the site they are developing or that is consequent directly upon that site—and, separately, there should be an infrastructure levy or community infrastructure levy.
I find it slightly surprising that the Government, having addressed the problems associated with the community infrastructure levy—it is not country-wide and it is based on pounds per metre squared, or a floor-space calculation, rather than on gross development value—did not do what struck me as the sensible thing: to rewrite aspects of the community infrastructure levy while retaining its basic structure, and make it mandatory for local authorities to introduce one. Instead, they are sweeping it all away—but not entirely. All sorts of definitions of the community infrastructure levy will be retained. The CIL will go on for years in relation to all the developments that receive planning permission before the infrastructure levy comes into place, as we just heard.
The infrastructure levy also does not sweep away Section 106 at all. This is supposed to be transparent and streamlined; I am sorry, but I do not find it to be that. There are three routes. There is the core levy routeway but, when you delve into that, there is a delivery agreement within it that is, to all intents and purposes, Section 106 retained. The infrastructure levy is not sweeping away Section 106 or the negotiable aspects. If the Government really want to set—I understand why they would—what is effectively a minimum level of contribution from developers in relation to a development that goes towards integral infrastructure as well as wider infrastructure requirements, why not just do that and directly relate the Section 106 contributions to the total of the infrastructure levy—or the community infrastructure levy under the current system?
We have a series of difficulties. The current system, with gross development value, will have serious potential issues. For example, how will these viability assessments be done, by whom and how many times? The Government themselves are contemplating a viability assessment at the application stage—the indicative one—then another provisional one post commencement but prior to the completion stage, and then a final adjustment. Reading the documentation, the implication is that each of the viability assessments is an incremental change on the previous ones. What we know, and the noble Baroness, Lady Taylor of Stevenage, kindly agreed with me on this, is that the viability assessments can change dramatically. There is nothing in the structure of this that looks yet at what those implications might look like.
Baroness Pinnock (LD)
My Lords, this may be the third occasion on which we have discussed the infrastructure levy, which simply illustrates how important a part it will play in future development if it is passed. I agree with much of what the noble Lord, Lord Lansley, said about the proposal for an infrastructure levy. It seems to me that there are too many variables in the infrastructure levy to give certainty to local communities, planning authorities and developers.
Growth development value on large-ish or medium-sized sites which are going to be developed across a number of years—300 houses over eight years, maybe—can significantly change in that period, as can the viability of the developer, because of lots of external factors. I had a lot of sympathy with the noble Lord, Lord Lansley, when he asked why we have this complicated system where viability assessments take place at various stages during the development. How can the change that will inevitably happen during a development period provide with some certainty the affordable housing a local area needs, for instance? One of the huge risks of the infrastructure levy is that, rather than increasing the number of affordable homes that are built, it will reduce it, because of the risks to local communities and councils, and to developers, across the planned period.
From what I have heard from the Minister, the purpose of the infrastructure levy is to provide more certainty for developers and to take away the requirement to sign legal and Section 106 agreements. However, it does not—we heard in the earlier group that we are retaining Section 106 for some aspects and deliveries. At the heart of this issue is the challenge of how local infrastructure, as part of a new development, is funded, who funds it, and what qualifies as infrastructure. Planning authorities will have the unenviable task of determining the proportion of infrastructure levy to subsidise housing against mitigating the impact on the community for school places, GP surgeries, open spaces, biodiversity, green spaces, play areas, and so on, all of which will have to be funded through the infrastructure levy.
I have said already that one of the risks of the infrastructure levy is the uncertainty that will be created. As I understand it, and maybe the Minister can help explain it, when a local plan is being developed, the infrastructure delivery strategy will have to be determined at the same time. That leads me to some questions. Where does the infrastructure delivery strategy fit in relation to local plans that have been agreed and are being implemented? Does a new one have to be developed on the back of the long and painful process of developing a local plan? Do we have to have another infrastructure delivery strategy on top of that, bearing in mind that local plans are in existence for 10 years? How does that fit in, because when local plans are developed, they will have had in mind a previous regime for funding infrastructure?
I have another pertinent question. As rates are going to be set by local planning authorities and councils, they will inevitably reflect local economic circumstances. The example of the rates agreed for community infrastructure levy—albeit that excludes Section 106—is informative in this regard. In a Yorkshire metropolitan authority that I will not name, of the charges for CIL that were calculated, the charge per square metre for the highest of the three tiers was £80. I then looked at a district council in Hampshire, where financial circumstances are better, and the highest tier there was £235 per square metre. It concerns me greatly that there should be a huge differential between a relatively poor Yorkshire metropolitan council area and a relatively well-off area towards the south of the country.
The differential rate is so large that I do not see how councils in the north, or areas where it is more difficult to extract funding from developers because of land values, will be able to fund the levels of infrastructure that are required. The risk is that those areas have less funding from the levy to implement affordable housing and all the other public services that normally come out of development, whereas better off areas could provide better facilities. That is one huge risk, and a worry for me.
I have some questions on that for the Minister—I hope she will be able to answer them. I read through the technical paper on the infrastructure levy but I could not see anywhere where the department had done some calculations as to what the rates are anticipated to be in different parts of the country. I am sure the department will have done that, otherwise you would not make this transformational move. It would be good to hear from the Minister what those acceptable estimated rates are. Currently, as we know, about 66% of funding from CIL and Section 106 goes on affordable housing. Perhaps the Minister will be able to tell us what proportion of different rates across the country it is anticipated will be spent on so-called affordable housing.
I come to my third question. Developers are interested in maximising their profits—quite rightly, as they have commercial interests. They will find ways, as they do with Section 106 and CIL, to challenge the requirements through viability assessments. The best thing that could happen is that those assessments disappear. Perhaps the Minister can talk a bit about that. If all this is to be dependent on viability assessments, the prospect of raising more funds for subsidising housing and community benefits out of development schemes is more pie in the sky than reality.
The trouble with all this is that, as with many other parts of the Bill, there is insufficient information to make judgments about whether the efficacy of the new powers as against existing schemes—which are known, tried and tested—will work.
The big question for me is that the Government are hoping that the infrastructure levy will fund more so-called affordable housing, which, certainly in my authority, is now required to be in perpetuity: the 20% reduction in market value has to be passed on by a covenant on the house in perpetuity. You get a better bang for your buck from that, so I ask the Minister whether this, too, could be a requirement of any infrastructure levy subsidy of affordable housing. There are more questions than answers, and I look forward to what the Minister has to say.
Baroness Taylor of Stevenage (Lab)
My Lords, I thank the noble Lord, Lord Lansley, for initiating this clause stand part debate, because in the way we do business in your Lordships’ House, amending existing Bills, it is always worth taking a step back and asking whether we need to do this at all. He has generated a very interesting debate, and in the other groups on the infrastructure levy, it has always been worth holding in our minds whether this is the right way to do it, or whether we should go back to what we have already. That is always worth doing.
The local government community would welcome some clarity on the whole issue of developer contributions. The LGA has been quite supportive of the infrastructure levy, with some qualifications, but wants clarity on what quantum we are expecting to get from it, as well as what is expected to be achieved by it, because we are in danger of making it into the motherhood and apple pie of local government funding, and it certainly will not achieve that.
This is even further complicated in two-tier areas—I have the scars on my back to prove it—where the district council is the housing authority and is looking for substantial contributions to housing, but the upper-tier authority has a duty to press for funding for education, highways, flooding and all the other things that upper-tier authorities look after. It is important we understand the weighting of those various voices in the infrastructure levy process, because otherwise all the pressure on infrastructure will raise viability questions once again. The noble Lord, Lord Greenhalgh, who is not in his place today, previously raised issues about emergency services and whether they warrant consideration for infrastructure levy. These are questions we are rightly looking at as we go through the Bill.
Our provision in the first group was for pilots, and we would have preferred that they were carried out before the Bill came to the House, which would have enabled some testing of the efficacy of the infrastructure levy before we went down this route, but that is shutting the stable door. I should be interested to hear the Minister’s responses on how long the transition period will be and what will be done to test this out as we go through the process.
The noble Lord, Lord Lansley, asked why, if what the Government are trying to achieve is a minimum contribution levy, they do not just do that. I should be interested to hear the Minister’s answer to that question. It is a really good point that, if we must assess this at planning, post-commencement and at final adjustment, what happens if there is significant inflationary pressure, a market crash or whatever between those stages? If it works one way and the final adjustment ended up being a further contribution in cash from developers to make up the difference, that is one thing; if it goes the other way, however, and the viability at the planning stage is greater than what is achieved at the final adjustment, what happens then to the difference? There is quite a lot still to be thought through on this.
I am grateful to the noble Lord, Lord Lansley, for raising the question, but the local government community is quite keen now to have the issue of developer contributions resolved. If the infrastructure levy is going to do that, that would be a good thing, but there are many more questions to answer before that happens.
Baroness Scott of Bybrook (Con)
My Lords, I thank my noble friend Lord Lansley for tabling these amendments.
As we have discussed, infrastructure delivery strategies will help local authorities to plan for the vital infrastructure that is needed to support sustainable development in their area. The infrastructure levy is designed to be a more effective and streamlined system than CIL and planning obligations. Unlike CIL, the new levy will be a mandatory charge which all relevant authorities will be required to adopt. This is an important step in reducing the complexities of the existing system and ensuring uniformity. Also, it ensures that all local authorities benefit from the levy receipts for their local area over time. The levy will be designed to be responsive to market conditions, meaning that local authorities get a fairer share of the uplift in land value that often occurs between the grant of planning permission and site completion to fund local infrastructure.
My noble friend Lord Lansley asked what happened if there was a 10% reduction in GDV which resulted in a 40% reduction in developer profit. As the final liability is based on the gross development value, if the sales value falls, the levy liability will also reduce—that happens similarly at the moment anyway.
The infrastructure levy will be able to fund the provision of affordable housing, largely replacing the operation of the Section 106 agreement. At the moment, the Section 106 agreement is what delivers most of the affordable housing and is often hard fought by local authorities. This will be a much more stable way of delivering affordable housing. The new right to require will mean that local authorities can stipulate the affordable housing that they require to be delivered in kind as part of that levy liability.
My noble friend Lord Lansley also asked about regional inequalities. We can only capture the land value uplift that is there. We expect to capture more in high-value greenfield areas, obviously, and this is what happens in the existing system—you cannot do that any other way.
The noble Baroness, Lady Pinnock, also brought in the point about the infrastructure delivery strategy and existing local plans, which is an important issue. We must accept that we are making a big change here. An assessment of infrastructure need will be undertaken alongside the local plan. In the long term, we expect these two parts of the delivery strategy will be brought together, but during transition they may have to be undertaken separately. We are talking about long-term here, and we expect those two plans to be together eventually and as soon as possible.
Baroness Taylor of Stevenage (Lab)
The issue about regional inequalities is really important. This is supposed to be a levelling-up Bill. If there will be more inequalities in the infrastructure levy in different parts of the country, then it is hard to see how it will help the Bill to do its job in terms of levelling up. It will exacerbate inequalities, not help to level them up.
Baroness Scott of Bybrook (Con)
I am not sure that is right. To take affordable housing, in an area with lower housing-cost needs and where housing is of lower value, you cannot expect the same infrastructure levy for houses and land of £150,000 to £350,000, so you must get that balance right. However, with levelling up, we would expect the values to come up and level as we go through the levelling-up procedure.
Lord Stunell (LD)
The noble Baroness makes a very interesting point, but the problem is that construction costs are not as widely differentiated as land costs. This means that an area with a low level of levy will not be able to build an equivalent number of homes to an area with a high levy. The mismatch between costs and income will be the problem.
Baroness Scott of Bybrook (Con)
I take that point. We have talked about the different rates from different development typologies, and we expect local authorities to set different rates. As the noble Baroness said, they do that with COUNCIL for different development types. We have published research that shows the range of possible rates for different case study areas, and I have put the results of that research in a letter.
For all these reasons, the Government are introducing the new infrastructure levy through the Bill and it is the correct thing to do for the country. There are too many local communities that, with the CIL system and the Section 106 system, are not getting what they deserve from the developments in those areas. So a new system, however difficult it is or however long it takes to deliver, has to be the right way to go.
Baroness Pinnock (LD)
The Minister makes a very important point about the infrastructure levy, as opposed to Section 106 and CIL. Could she provide us with some evidence that the infrastructure levy will raise more money than the existing system?
Baroness Scott of Bybrook (Con)
I will look to the evidence but, as I have clearly stated many times, we are expecting the same if not more housing, particularly affordable housing, from this infrastructure levy. I just say to my noble friend Lord Lansley, as I have said before, that we are not getting rid of Section 106 agreements, but will use them only in very restricted circumstances. The main issue from this is that affordable housing comes out of the Section 106 system and into the infrastructure levy system. When the whole country moves to the infrastructure levy, it will make affordable housing a much more important issue when it comes to how we use developer contributions in the future.
I move on now to government Amendment 361A. This makes three consequential changes to other Acts of Parliament to ensure that the new infrastructure levy will be treated in the same way as CIL in relevant legal contexts. First, Section 101(6) of the Local Government Act 1972 requires that a local authority’s functions in relation to levying rates may be exercised only by that authority—in other words, those functions may not be delegated—but CIL is not a “rate” for this purpose. This means that a local authority may delegate its CIL functions.
Amendment 361A replicates this approach in respect of infrastructure levy functions. I emphasise, however, that the Bill contains important safeguards for democratic accountability. For example, new Section 204K(6) makes it clear that a local authority may approve its infrastructure levy charging schedule only at a meeting of the authority and by a majority of the members present.
Secondly, Section 70 of the Town and Country Planning Act 1990 provides that “local finance considerations” can be a material consideration when determining planning applications. Local finance considerations include CIL, which can therefore be a material consideration when a planning application is determined.
Government Amendment 361A treats the infrastructure levy in the same way, allowing infrastructure levy receipts—anticipated and received—to be taken into account when determining planning applications. This does not override the primary aims of the infrastructure levy to support the development of an area by providing infrastructure, including affordable housing, or its meeting of other purposes, as set out in regulations, in a way that does not make development of the area economically unviable.
Baroness Scott of Bybrook
“(ea) may make provision treating CIL as if it were IL,”Member's explanatory statement
This amendment enables IL regulations made under new Part 10A of the Planning Act 2008 (as inserted by Schedule 11 to the Bill) to make provision treating the charge known as the community infrastructure levy under section 205 of that Act to be treated as if it were the charge known as the infrastructure levy.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment enables IL regulations made under new Part 10A of the Planning Act 2008 (as inserted by Schedule 11 to the Bill) to make provision about the use of the power under section 106(1)(d) of the Town and Country Planning Act 1990 to obtain sums for use in connection with IL.
Baroness Scott of Bybrook
“Local Government Act 1972
1A In section 101 of the Local Government Act 1972 (arrangements for discharge of functions by local authorities), after subsection (6) insert—“(6ZA) Infrastructure Levy under Part 10A of the Planning Act 2008 is not a rate for the purposes of subsection (6).”TCPA 1990
1B In section 70(4) of the TCPA 1990 (determination of applications: general considerations), in paragraph (b) of the definition of “local finance consideration”, after “payment of” insert “Infrastructure Levy or”.Deregulation and Contracting Out Act 1994
1C In section 71(3) of the Deregulation and Contracting Out Act 1994 (functions excluded from sections 69 and 70), omit the word “and” at the end of paragraph (h) and after that paragraph insert—“(ha) sections 204R and 204S of the Planning Act 2008 (Infrastructure Levy: collection and enforcement); and”.”Member's explanatory statement
This amendment makes amendments to a number of Acts in consequence of new Part 10A of the Planning Act 2008, inserted by Part 1 of Schedule 11 of the Bill, which makes provision for a new Infrastructure Levy.
Member's explanatory statement
This means that the objective of CLA is to support ‘sustainable’ development.
Baroness Taylor of Stevenage (Lab)
My Lords, we move on to Part 5, “Community land auction pilots”. This was not in the Bill when it went through Committee in the other place so it has not really had any proper scrutiny.
We are asking: why legislate for pilot schemes? Once again, as I mentioned under the part of the Bill concerned with the infrastructure levy, surely it makes more sense to run pilot schemes before legislation is brought forward, not to put them in the legislation. For example, although we on these Benches were very unhappy with the introduction of voter ID, as the noble Earl the Minister knows, at least the Government spent a couple of years running pilot schemes on it before bringing the legislation forward. Can the noble Earl explain the thinking about the process that is being followed, in this case, of putting pilots in the legislation instead of running them before the legislation comes before us?
As we all know, currently, when planning permission is given for new homes, the land in question can increase in value by over 80 times. The vast majority of this goes to the landowner and other players, with very little being captured by the local authority. Community land auctions would give councils the tools to capture much more of the value uplift, which they can then spend on local priorities such as improved infrastructure and better public services. In theory, this sounds like a really good idea but, as always, the devil is in the detail. We need to understand properly how this would work in practice. What will the impact be on developers and how will they react? What consultation took place between the Government, local authorities and developers before this proposal was put in the Bill?
Under Amendment 362, in the name of my noble friend Lady Hayman of Ullock, the objective of community land auctions would be to support sustainable development. I am not going to go into all the reasons for that again now. We have had lots of discussions about why it is important that the Bill focus all the time on the sustainability of the development that will take place as a result of some of its provisions, so I do not need to highlight that any further.
Under Amendment 365, in the name of my noble friend Lady Hayman of Ullock, any relevant combined authority would be given the report to scrutinise. It is very important that we enshrine liaison with local authorities as part of the Bill, and I hope we will be able to do that.
There is also a stand part debate on Clause 127. I will be interested to hear the noble Lord, Lord Lansley, discuss the purposes and mechanisms of community land auctions. It would be useful to hear about the relationship between community land auctions and the plan-making process, and how they will fit in as the process takes place. I beg to move.
Lord Young of Cookham (Con)
My Lords, I shall speak to the proposition in my name and that of my noble friend Lord Lansley that Clause 127 should not stand part of the Bill. My noble friend and I are job-sharing for much of this section of the Bill.
This clause deals with pilots for community land auctions, which aim to give local authorities the ability to benefit far more greatly from new development than they do under the current system, even as proposed in the Bill. Basically, it takes the principle behind Section 106, the new homes bonus, CIL and the infrastructure levy a stage further, but in doing so it risks compromising the integrity of the planning system by moving more towards the sale of planning consents.
The Explanatory Notes to the Bill are normally quite helpful, but the 10 lines on the background to CLAs, on page 126, do not explain what is going to happen. As I understand the proposal, a landowner can name the price at which he is willing to sell his land to the council—it would probably be agricultural land, but it could be industrial land—which then has an option to purchase the land at that price. The price will be somewhere between the current value and the hope value with planning consent. The local authority then develops its plan, and if that land is deemed suitable for housing development, it buys it at the option price and resells it to the developer, pocketing the difference. I assume the Government hope that many landowners will take advantage of the scheme so that the local authority has a choice and the ability to choose best value. I think it clear from that scenario that the local authority has a financial incentive to designate land for development over which it has an option, in preference to land over which it has no option but which may be more appropriate for development. I will return to that in a moment.
Lord Lucas (Con)
My Lords, I cede everything to my noble friend Lord Young when it comes to experience and wisdom in this matter, but I am very attracted by the idea of running the pilot proposed by the Bill. It has long seemed to me deeply inequitable that when it comes to property development, the landowner gets so much for the uplift and the community gets so little. We very much need to explore and try out ways of setting that right, and this seems an excellent thing to try. I share my noble friend’s reservations that aspects of it may turn out not to be right, but that should not prevent us having a go. My amendment just says that if it proves to be a success, and I shall keep my fingers firmly crossed that it is, it would seem foolish to let it die after 10 years without giving Parliament the opportunity to let it continue.
Baroness Pinnock (LD)
My Lords, I thank the noble Lord, Lord Young of Cookham, very much for the best explanation of community land auctions that I have heard. I have searched the internet to find a good explanation but have heard the best one this afternoon from him.
The issue is how we capture for local communities the uplift—a very large uplift in many cases—in land values once planning consent has been given to a site. This is one way in which it could work and it has some attraction to it. However, living as I do in West Yorkshire, where land values are not like those in Surrey, Hampshire or Berkshire, the inevitable consequence of community land auctions is exactly as the noble Lord, Lord Young, said: to the well off, more shall be given while to the least well off, little shall be given.
As far as I can tell, this will exacerbate regional inequalities. As the noble Lord, Lord Young, said, this is a levelling-up Bill. Living where I do, I was really looking forward to lots of proposals in it to reduce regional inequalities, but this is one example of where it will do the opposite. Somehow we have to find ways of extracting the very considerable uplift in land values once planning consent is given for housing.
Where I live, we still have many former industrial sites in need of costly remediation, and those land values will not be there for a community land auction. The provision will work only on greenfield sites, which is contrary to what we are trying to achieve. It will increase regional inequalities, which is contrary to the purpose of the Bill. If we can find a better way of extracting land value once planning consent or planning allocations have been given, that is where we should go. I am not convinced that this is the way, interesting though the proposal is. “Let us see the evidence” is what I would like to say. I know we are going to do a pilot, but somebody somewhere in the department has done some thinking and provided some evidence. Let us see it before we make a decision on this, because otherwise it is a dive into the unknown.
My last point is that there have not been good examples recently of local authorities getting involved in commercial practice—in fact, the contrary is the case. That is where this would take us: local authorities bidding for and buying land at a certain value and then hoping that, once they sell it on with planning consent, the extra can be extracted. That is putting a lot of faith in the commercial expertise within local authorities, which I am not sure they have. If I was putting a bet on developers and landowners against local authorities, I know which one would win.
Earl Howe (Con)
My Lords, in addition to the levy we have been debating, the Government are interested in testing other mechanisms that could improve land value capture.
Community land auctions are an innovative process of identifying land for allocation for development in a local planning authority’s area in a way that seeks to optimise land value capture. Their aim is to introduce transparency and certainty by allowing local planning authorities to know the exact price at which a landowner is willing to sell their land. The crux of our approach is to encourage landowners to compete against each other to secure allocation of their land for development in the local plan by granting a legally binding option over their land to the local planning authority.
The competitive nature of community land auction arrangements incentivises landowners to reveal the true price at which they would willingly part with their land. If the land is allocated in the local plan upon its adoption, the local planning authority can sell the CLA option, keeping the amount that the successful bidder has paid and capturing the value that has accrued to the land as a result of the allocation. The successful bidder must then pay the price set out by the original landowner in the option agreement to purchase the land. The detailed design of community land auction arrangements will be set out in regulations that will be subject to the affirmative procedure. In a moment, I will address my noble friend Lord Young’s clause stand part notice but, for now, I hope that that is useful background, by way of introduction.
The Earl of Caithness (Con)
My Lords, maybe it is because it is Thursday afternoon, but I am slightly more confused now than before my noble friend gave his reply. He said that the land would be within the development plan, but he also said that it is an innovative way of identifying land for development. Those two statements do not seem to agree; there is a contradiction. I do not think that my noble friend answered my noble friend Lord Young’s point about the distortions that this can cause to a potential development plan.
It is perhaps true more in the south of England than in the north, where land values are cheaper, but if a landowner gets in cahoots with the local authority and says, “I will sell you my land at X”, knowing very well that his chances of getting planning permission are zero, would that not encourage the local authority to alter the development plan to benefit itself and the community rather than doing planning in the old-fashioned way, which was to develop with a holistic view of the area?
One thing I am not certain about is where local authorities will get the funds from to buy that land, particularly in the expensive south-east. I wonder whether my noble friend can help me on that.
Earl Howe (Con)
My Lords, the process will not be as my noble friend has described. The simplest way I can describe this is that community land auctions will be a process of price discovery. In the current system, local planning authorities have to make assumptions about the premium required by a reasonable landowner to release their land for development. For Section 106 agreements, this manifests itself through viability negotiations between the local planning authority and a developer. As these can be negotiated, there is a higher risk that, in effect, higher land prices lead to reduced developer contributions, rather than contributions being fully priced by developers into the amount that they pay for land.
For the community infrastructure levy and the proposed infrastructure levy, a levy rate is set for all development within certain parameters. When setting rates, the local planning authority has to calculate how much value uplift will occur on average, and has to make assumptions about landowner premiums and set a levy rate on that basis. The actual premium required by individual landowners will not be available to local planning authorities and will vary depending on individual circumstances. If the local planning authority makes an inaccurate assumption about landowner premiums, they may either make a lot of sites unviable by setting too high a levy rate, or else they will collect much less than they might have done otherwise by setting too low a levy rate.
Under the CLA process, landowners bid to have their land selected for allocation in an emerging local plan, as I have described, by stating the price at which they would willingly sell their land to the LPA for development. The offer from the landowner, once an option agreement is in place with the LPA, becomes legally binding. The LPA can either exercise it themselves, thereby purchasing the land, or auction it to developers. The competitive nature of CLAs incentivises landowners to reveal the true price at which they would willingly part with their land. If they choose to offer a higher price, they risk another piece of land being allocated for development, in which case they will not secure any value uplift at all.
I do not want to prolong the debate unnecessarily, so I will respond to my noble friend in writing on the other questions I have not covered.
Lord Young of Cookham (Con)
I am very grateful to my noble friend the Minister for the very patient way he dealt with the argument I put forward. I will take him up on two points. First, he said that the Government will consult local authorities about this. Surely, before introducing primary legislation on a major planning system, they should consult the local authorities first, rather than after the Bill has gone through. Secondly, and perhaps more importantly, I think he said that when the local authorities were drawing up the plan they could take into account the financial benefits. I think that is moving towards what he subsequently deplored: namely, the sale of planning permission.
Earl Howe (Con)
The extent to which those financial benefits can be taken into account will be set out, as I mentioned, in regulations. My noble friend makes a fair point, but parameters will be set around this. On the issue of prior consultation, which the noble Baroness, Lady Taylor, also raised, one can take two views: one is to go through the process that my noble friend advocated, and the other is to say that the integrity and workability of the scheme is such that we can afford to come to this House and the other place first before launching a pilot. Our view is that it will be perfectly satisfactory to take that course.
Baroness Taylor of Stevenage (Lab)
My Lords, this has been a very interesting discussion. This is probably one of the cases where there is less clarity at the end of the debate than there was at the beginning. I am very grateful to the noble Lord, Lord Young, for once again giving a very forensic and detailed analysis of the subject and for raising all the key issues that sit within it. As the noble Baroness, Lady Pinnock, said, it was a very clear description of community land auctions.
On the issue of consultation, I remind the Committee that the noble Lord, Lord Benyon, in answer to an Oral Question earlier today, said that we are in danger of doing too much consultation. In this case, it would have been helpful if councils had been consulted before this proposal was put forward in primary legislation, because some of the issues raised in the debate would have come up immediately—they are quite obvious to those of us engaged in local government.
I have great sympathy with what the noble Lord, Lord Young, said. There is a queue of things that many of us feel should be in this Bill, including renters reform, leasehold reform, repealing the Vagrancy Act and so on. They did not get across the line and put into this primary legislation; yet here we have a fairly unformed idea, which has not been tested, which is in the legislation. That process is a bit mysterious to some of us.
Baroness Hayman of Ullock
Member’s explanatory statement
This amendment will ensure that climate and other key environmental considerations, including the need to improve the condition of protected sites, will be included in the new EOR regime.
Baroness Hayman of Ullock (Lab)
My Lords, I have a number of amendments in this group. I will not go into detail on all of them but will talk about our concerns about this part of the Bill and home in on a number of them.
Part 6 gives Ministers the power to amend or replace 17 systems of environment assessment with a new environmental outcomes regime. Changes to these technical systems will have significant environmental impacts on the ground. Environmental assessment provides the critical processes that ensure that nature, climate and heritage considerations are properly considered in the planning system and that help protect sensitive sites from damage. Given the potential for environmental harms—or benefit, of course—to arise from these changes, we believe that detailed parliamentary scrutiny is essential. We are concerned that, as drafted, Part 6 largely freezes Parliament out from shaping the process that is going to have significant impacts for net zero and for nature’s recovery.
The bulk of the detail of the environmental regime, including the outcomes that it will be built around and which actual projects it will apply to, are all going to be set by secondary legislation. In the words of the Office for Environmental Protection, the body set up by the Environment Act to scrutinise environmental policy,
“its potential environmental implications will only become fully apparent through ‘EOR regulations’”.
We believe that giving the Secretary of State Henry VIII powers to reshape all systems of environmental assessment is unsatisfactory and inappropriate, considering the climate and ecological emergency that we are living through. My amendments would require Ministers to set higher environmental ambitions in primary legislation and allow for greater parliamentary scrutiny of any subsequent EOR regulations. This would enable parliamentarians to ensure that the new processes lift rather than lower environmental standards, something that Ministers have often declared they want to see.
My Amendment 372 would ensure that the central aspect of the EOR regime—the nature of the environmental outcomes it will strive to deliver—is fully set out in primary legislation. Currently, the lack of detail in this area is such that climate is not in fact mentioned at all within the EOR scope set out in Clause 138. Perhaps the Minister will explain why. Friends of the Earth has observed that we
“are left to hope that Government will, at some later stage, include the protection of the climate as an environmental outcome”.
A consultation on the EOR published by DLUHC in March sheds little further light on this baffling omission of climate from this Part of the Bill. The consultation suggests that climate change will be inherent in the consideration of the factors listed in Clause 138 and adds that Ministers can always use secondary legislation to update it if required. Does the Minister agree that such a relaxed approach to the consideration of climate impact within environmental assessment is inappropriate in a climate emergency? My Amendment 372 clarifies that protection of the climate from the effects of human activity should be a core environmental outcome, set through primary legislation.
My Amendment 371 adds further essential details to the description of other outcomes—for example, the need for natural environment outcomes to include improvements to the condition of protected sites. Adding these core environmental aspects to the Bill will then embed them into the EOR regime right from the start and allow their detailed application to be further considered through proper scrutiny.
My Amendment 377 would strengthen the non-regression safeguard in Part 6 and ensure that the EOR regime will not be weaker than current systems of environmental assessment. The current safeguard set out in Clause 142 is far from robust, because it gives the Secretary of State the power to actually weaken standards in the EOR regulation, as long as they are satisfied that the overall level of environmental protection will not be less than before. The Office for Environmental Protection has highlighted that this “overall” wording allows for highly subjective assessments to be made by Ministers, with declines in crucial standards potentially being offset by strengthening of standards that a Minister alone feels has the same weight. For example, a Minister could balance weakened standards for the condition of protected sites with improvements in standards for environmental data collection, allowing the weakening of protected sites to proceed, to the detriment of nature.
My Amendment 377 replaces this weak safeguard with a stricter legal test, requiring no diminution of environmental protection in any one area. This provides a higher bar to shape EOR regulations and for parliamentarians to assess them against. It also echoes the wording of the non-regression clause—Section 20—in the Environment Act 2021. This robust non-regression test should also be applied to this Bill. I hope the Minister agrees. The Government have already responded positively to one set of amendments to Part 6, and we thank them for that.
My Amendment 369 and Amendments 375 and 376 tabled by my noble friend Lady Taylor of Stevenage highlight that, due to confused drafting, Clauses 139 and 141 would undermine the mitigation hierarchy, which is a keystone in environmental protection in the planning system. We very much welcome government Amendments 373A, 373B, 373C, 373D, 373E and 373F, which were tabled in March to address this. Will the Minister and her department look again at how this responsive approach could be extended to ensure that the EOR regime has climate considerations and that there is a robust non-regression clause built into it?
The process for scrutinising the regulations that will implement Part 6 needs to be enhanced. Currently, the Bill sees EOR regulations subject only to the affirmative procedure, which, of course, precludes amendment and almost always leads to the regulations being passed. Given the significant environmental impacts that EOR regulations will have, we believe that a more thorough and constructive form of scrutiny is required. My Amendment 388 will achieve this by requiring EOR regulations to be made under the super-affirmative procedure. This means we have an additional 60-day period for amendments and will allow for meaningful input into the detail of the new system.
It is important to highlight that a number of the environmental assessment systems that EOR could replace were originally set through primary legislation. Detailed parliamentary scrutiny and potential amendment of replacement regulations are clearly appropriate and commensurate with the need to get right the detail of vital climate and nature policies. In a letter to Peers following Second Reading, the Minister suggested that scrutiny concerns were unfounded, as the Government’s EOR powers were tightly constrained by their commitment to consultation with the public and public authorities. Public consultation is welcome, as long as it is for longer than 10 days, as I said earlier, but it does not provide a constraint on ministerial power. It is also no substitute for proper parliamentary debate.
Together, my amendments constitute a repair package for the EOR proposals. Currently, they constitute a ministerial power grab, with the Government asking us, once again, to trust they will do the right thing with the considerable powers that Part 6 confers. These amendments will provide a legislative underpinning to limit this leap of faith, embedding high environmental ambition in the Bill and enabling meaningful parliamentary scrutiny of any additional detail. I urge the Government to carefully consider the case for these improvements to Part 6 of the Bill, so that it meets the minimum scrutiny standards we expect of such significant policy changes. I beg to move.
Lord Randall of Uxbridge (Con)
My Lords, I will speak to my Amendment 384. Before I start, as there has been some gap between my appearances in this Chamber due to health issues, I remind the Committee of my conservation interests as laid out in the register. My amendment is supported by the noble Baronesses, Lady Jones of Whitchurch, Lady Willis of Summertown and Lady Bakewell of Hardington Mandeville. I was very grateful to those noble Baronesses for moving some amendments in earlier stages of Committee when I was not able to because of health issues.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Randall of Uxbridge, and I am sure the entire Committee will join me in saying that we are delighted to have him back with us. I also commend the noble Baroness, Lady Hayman of Ullock, for the huge amount of work that has gone into this. So much is having to be filled in from the Opposition Benches and indeed the Back Benches on the other side, because this is such a skeleton Bill.
We have not only a shortage of birds, mammals and insects, but we are running into a shortage of Henry VIII metaphors. We have Henry VIII on steroids with rockets strapped to his boots—I have run out of additions to that one. The Bill as before us now would put into law an extreme right to Ministers to do whatever they would like. It is interesting to be having this debate in the context of the just-completed Report of the retained EU law Bill, because then your Lordships’ House expressed very clearly a desire to see non-regression in environmental regulations, but we need amendments such as these to the Bill to deliver the will that the House has expressed.
This group also made me think of debate on the economic crime Bill, where we were recently discussing the issue of freeports. There is a great deal of fear and concern in the community that these are places of open slather, where businesses will be allowed to do whatever they like and destroy whatever they like, where all the rules are taken away. As the Bill is written, that is what environmental outcome reports will effectively be doing: taking away EU-derived protections and leaving nothing written down in their place.
I will not run through it in detail, but if any noble Lords have not seen it, I point them to Wildlife and Countryside Link’s excellent report going line by line through a number of the amendments and explaining their importance. I pick out a couple of points. Amendment 372 concerns the climate. As the noble Baroness, Lady Hayman, said, we are in a climate emergency, and how can that be missing from this crucial Bill? We are supposed to be talking about a levelling-up Bill. These changes to environmental protection around the country seems a long way from levelling up, but that is where we are. If we think about the protection of nature and the impact of the lack of nature on public health, people’s well-being and communities, it is of particular interest to communities generally seen to be in need of levelling-up support.
I particularly pick up one element of Clause 141: the fact that it destroys the mitigation hierarchy. The environmental mitigation hierarchy starts with “avoid”: do not trash things in the first place. We are one of the most nature-deprived corners of this battered planet and should be absolutely avoiding environmental damage. At the moment, we are doing the opposite. I think of how often my social media feed and my email queue are full of desperate people saying, “How can we be cutting down this ancient tree to build one house?” or, “How can we be destroying this hedge when, with a bit of initiative and creativity, we could leave the hedge and build some houses as well?” There is so much we are not doing, and the way the Bill is written allows open slather to that.
I just note one point on Amendment 388, which introduces a super-affirmative procedure for regulations. It is an inadequate backstop: it is a backstop, but not nearly good enough. We need to write the essential protections into the Bill. That would mean that the Committee is following the desire that the House expressed at Report on the retained EU law Bill.
Lord Lansley (Con)
My Lords, I will speak to three amendments in my name in this group: Amendments 378A, 378B and 386A. They are designed to try to ensure that this part of the Bill works effectively, and I hope will be regarded as helpful by my noble friend on the Front Bench. Not everything I have had to say has always been helpful, but I hope this is—it is all intended to be helpful, of course.
I remind the Committee of my registered interest as chair of the Cambridgeshire Development Forum. In that context, members of the forum from BDB Pitmans helped me with the construction of these amendments. Amendment 378A relates to Clause 142(3), which provides for informing the public and for “adequate public engagement” to take place in relation to the exercise of functions under this part. The effect of this new provision could be to extend public consultation requirements to the exercise of permitted development rights, because of the use of “proposed relative consent”. These are consents.
The present situation does not require such consents to be the subject of such a consultation requirement. In the legislation as it stands, adequate public engagement does not imply no public engagement. This would therefore increase the burdens on utilities, for example, in exercising a consent for a permitted development right in relation to telecommunications, highways, rail, et cetera. Amendment 378A would enable the Secretary of State to disapply the requirement where it would impose a disproportionate burden on development. Alternatively, page 174 mentions
“proposed relevant consent or proposed relevant plan”
in relation to “adequate public engagement”. If “proposed relevant consent” was replaced with “EOR regulations”, it would serve the purpose perfectly well, and save the problem that might otherwise arise.
Amendment 378B relates to Clause 142(1) on non-regression. It is a pleasure to welcome back to his place my noble friend Lord Randall of Uxbridge. We have heard from him about the
“overall level of environmental protection”.
This is defined by reference to the European Union law when this Act is passed. My Amendment 378B would enable the Secretary of State to take into account, in exercising this responsibility to maintain the level of environmental protection, any urgent need for energy resilience. It is worth remembering that Section 20 of the Environment Act 2021 provides for environmental legislation to be introduced with a statement that
“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
There is then in that section a statutory provision enabling the Secretary of State to make
“provision that is different from existing environmental law”
and
“might provide for the same or a greater level of environmental protection”.
Why then is there no equivalent provision in relation here to the making of EOR regulations? The inflexibility of this provision is particularly illustrated by the prospect in the European Union of the introduction of a streamlined environmental assessment process for low-carbon technologies. I have reflected this in the phrase
“urgent need for energy resilience”.
This would enable Ministers to take account of such a process to advance low-carbon technologies and not be tied specifically to a level of environmental protection defined by current environmental law. I encourage my noble friend to consider either my amendment or something similar to the provision in Section 20 of the Environment Act 2021.
Amendment 386A refers to Clause 150, which makes the consequential amendments to this part. It is about the proposed repeal of Section 71 of the Town and Country Planning Act 1990, which is what provides for environmental assessments. As it stands, that section will be repealed two months after this Bill passes into law. Existing environmental impact assessment regulations will then subsist from that moment until such time as the EOR regulations can be made, following the entry into force of those regulations.
But how long is the gap? How long will it be between this Act coming into force and the making of the EOR regulations? It could easily be well over a year and possibly two. For the greater part of that period, no power would remain to amend the environmental impact assessment regulations, pending the environmental outcomes reports regime. The EOR power is not able to amend the EIA regime until that stage.
Lord Stunell (LD)
My Lords, I will speak to my Amendment 372A in this group. Previous speakers have invested a huge amount of time in devising alternatives and improvements to the existing legislation, and I support their efforts very much. My amendment is much more basic and straightforward, and based less on research and more on intuition. It says that no new standards should be set lower than those in force at the time that the Bill comes into law. It is just a very basic, no-steps-backward amendment.
I am well aware that Clause 142 is, at least in essence, saying the same thing, except that it has a get-out clause, which has already been spoken to. It balances one sort of harm offset by another sort of good, all to be decided by a Secretary of State. That is not a no-steps-backward provision at all.
This kind of issue, the discretion being given to Secretaries of State, has come up on several previous days. We have had many earnest assurances from noble Lords on the Front Bench that there is every intention of maintaining, indeed increasing, the level of protection. It was said just this morning in relation to council houses; we are going to have more social provision, not less, as a result of the changes, and we are to trust them. Well, I am sorry to tell noble Lords that there is still a degree of uncertainty in the minds of many of us about how those promises will be delivered.
I have to say that Conservative Governments have proved quite transient things. We have had four Secretaries of State since this time last year and at least three fundamentally different approaches to housing targets and the levelling-up Bill. At least one key feature of the levelling-up mechanism set out in the White Paper was scrapped only this week—the regional levelling-up director posts—at, apparently, a saving of £144,000 a year for each of them.
There is a right royal battle under way, on and off stage, among senior Conservatives, aimed at setting our country free of all the enveloping red tape that stifles innovation and money-making. That is a paraphrase, but I hope not an unfair one. Mr Rees-Mogg, Mr Redwood and the Home Secretary are all hoping for a return to one or other of the alternative models of levelling up that Conservative Governments have played with over the last 12 months. Those versions have had lots and lots of levelling up, none at all or several mixtures in between.
So I ask noble Lords and the Front Bench Ministers opposite: what is the future of environmental outcomes reports? What guarantee is there that standards will not be allowed to drop, or perhaps even required to drop, in future, as red tape is cut and industry set free to make money and innovate? The current safeguarding guarantees are time-limited, fundamentally, to the assurances given by Ministers in Hansard. Based on the last 12 months, that level of protection is somewhat transient, and Clause 142 has its own get-out, as has already been pointed out.
If you look out of the window and see big clouds rolling in, you know that it is sensible to take your umbrella with you when you go out. That is common sense, not paranoia. If you look out the window and see big blue clouds rolling in from Bournemouth, or this weekend from Westminster, it makes even more sense to have your umbrella with you. My Amendment 372A is that umbrella. Yes, I want to see the other amendments in this group adopted, but surely we have to secure in the Bill the standards that we already have. That is why I have tabled Amendment 372A.
The Duke of Montrose (Con)
My Lords, I will speak to my Amendment, which has been coupled with this group. We are now moving on to Part 6 of the Bill, which involves Scotland. We have heard about all these doubts and areas that need to be cleared up, which are even more worrying for devolved Administrations.
My amendment is to Clause 143, “Requirements to consult devolved administrations”. I declare my family’s interest, as noted in the register, in that we own land in Scotland. We are fortunate; it is not a big area in Scottish terms, but it includes part of a national park, a nature reserve, a site of special scientific interest and special protection areas. As the Minister pointed out in an earlier debate, this is the section of the Bill that is most likely to affect devolved competencies. There can be no doubt that the Bill is causing much concern in the UK’s devolved Administrations, and we have just been hearing about the extent of the existing Henry VIII powers. Anyone who has spent any time in this Chamber knows that we are allergic to Henry VIII powers, and I hope that my noble friend can assuage us on the extent to which they will be included.
In the earlier debate on Clause 83, my noble friend rejected my proposed amendment. That issue only involved powers regarding planning data. Clause 143, as drafted, is a mirror of that text:
“The Secretary of State may only make EOR regulations which contain provision within Scottish devolved competence after consulting the Scottish Ministers”.
My Amendment 382 provides that, following the consultation, the Secretary of State must report the outcome and provide reasons. This is surely a necessary step for transparency and to maintain the trust between the parties on an ongoing basis. Consultation implies that all will put their cards on the table; agreement, as we all know, is harder to achieve. My noble friend may like to say that we would carry out these steps anyway. This amendment as drafted does not give any more power to devolved Assemblies but just gives them the comfort of knowing exactly where they stand.
It was further encouraging to hear my noble friend say, in his reply to an earlier debate, that
“the Government are continuing to work with the devolved Administrations to understand whether there is scope to extend the EOR powers to provide a shared framework of powers across the UK. Once those discussions have concluded, the Government will bring forward any necessary amendments to both Part 6 and Part 3 to reflect the agreed position between the UK Government and the devolved Administrations”.—[Official Report, 22/3/23; col. 1803.]
A shared framework of powers is precisely what this amendment is aiming to achieve. There is always the danger that, without achieving this framework, and with one party withholding consent, the outcome might go against any changes at all.
The Scottish Parliament’s legislative consent Motion for this measure was tabled on 27 July 2022. As I mentioned before, the main one of the three committees to give it consideration was the Net Zero, Energy and Transport Committee. In its report, brought out on 22 December, it could see some elements of the Bill that it welcomed. But, after taking evidence, it concluded that:
“Environmental Outcome Reports would lead to a significant change to environmental assessment in Scotland. However, the UK Government has not provided sufficient clarity around how they will operate in practice.”
Similar concerns were also highlighted by both the other committees in the Scottish Parliament. After consideration, all were still not prepared to grant approval.
The Government have introduced quite a raft of amendments to the Bill already. It would be interesting to know whether some of these are the fruits of their intergovernmental discussions, but we are still a long way short of achieving an agreed framework. Can my noble friend say whether that is still their aim?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I wish to speak to Amendment 384, in the name of the noble Lord, Lord Randall of Uxbridge, and to which I, like the noble Baronesses, Lady Jones of Whitchurch and Lady Willis of Summertown, have added my name. It is a pleasure to see the noble Lord in his place once again. He has set out his case for this amendment extremely well, as always.
Environmental outcome reports are key to monitoring our environment and the effect that we, the population, are having on it. We have had debates during the passage of the REUL Bill on the habitats regulations and the importance of ensuring that the regulations surrounding habitats are protected and would not run foul of the sunset clause on 23 December 2023, which has now, mercifully, been removed.
The Earl of Caithness (Con)
My Lords, having listened with care to what has been said on these amendments on this important part of the Bill, I will make a couple of comments.
I listened with care to what my noble friend Lord Randall of Uxbridge said on habitats. These are hugely important areas. There are two points that I hope my noble friend on the Front Bench will take into consideration. The first is that land varies very quickly, within a matter of feet in some instances. Although one wants the designation, one also wants the flexibility within that designation to get different solutions where things, and farmers, are slightly different. That flexibility within the overall framework is terribly important.
There is one aspect of the habitats directive that I hope my noble friend will look at in particular. Under the directive as it stands, no experimentation can take place within that area. On upland heather, it is hugely important that we do experiments, strictly controlled, in order to determine which is the best way of managing that fuel load. If we cannot do that within an area subject to the habitats directive—the Game & Wildlife Conservation Trust has had an application to do an experiment turned down by Natural England because the habitats directive will not allow it—we are putting at risk areas within that directive and the wildlife within them. I hope my noble friend will look at that in particular.
I support the noble Baroness, Lady Taylor of Stevenage, on her Amendment 374, but I would wish to make one small alteration to it, if my noble friend were to accept it: it should be “scientific data”, not just “data”. That is hugely important.
I hope that the noble Baroness, Lady Hayman of Ullock, will agree with me on this next point. The definition of environmental protection relates to the level of activity, but what about the level of inactivity? The noble Baroness spoke at length recently, and quite correctly, about flooding, and I spoke about wildfires. Both of those can be caused as much by activity as inactivity, so could my noble friend tell me whether, within her definition, action can be taken where there is no activity, because that also puts wildlife and habitats at threat? I hope my noble friend can answer me on those points.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I am grateful to noble Lords for their thoughtful consideration and hope that, in addressing the points raised, I can demonstrate how the new system of environmental outcomes reports offers a real opportunity to protect the environment.
On Amendment 367, I welcome the support of the noble Baroness, Lady Hayman of Ullock, for the setting of outcomes, but the proposed amendment would have unfortunate consequences. Changing a discretionary power to specify environmental outcomes in regulations to a mandatory requirement would require each regime to set environmental outcomes for every element of the definition of environmental protection.
Perhaps I should add a bit of detail as to how the outcomes will be set. The Government have committed to public consultation to ensure that the public and stakeholders have the opportunity to shape them. Regulations specifying environmental outcomes pursuant to Clause 138 will also be subject to parliamentary debate and scrutiny via the affirmative procedure. We will work across government and with key stakeholders to develop our outcomes, which will cover a range of environmental issues. In addition to the commitments in the 25-year environment plan, other strategies will be considered—for example, the clean air strategy, the UK marine strategy and the Government’s wider environmental targets.
We want to make sure that outcomes are deliverable by developing comprehensive guidance to demonstrate how plans and projects are contributing to the delivery of outcomes. As the current legislation covers a range of assessments with different environmental contexts, it would not be appropriate to require regimes to set outcomes for every area in the definition as not all would be applicable.
Amendment 368 seeks to include social outcomes as part of the EOR framework. As noble Lords will be aware, environmental assessment was originally established to provide an additional level of scrutiny to environmental concerns, which were often overlooked in decision-making on development. This need is greater now than ever before. It is important to remember that EORs sit within wider planning and consenting systems, which include extensive democratic processes, where social considerations are already well represented. Our current consultation includes questions on the role of EORs in considering impacts on local people.
Amendments 368A, 369A, 370 and 371 relate to the definitions of environmental protection and the natural environment. The Government are clear that the definitions in Clause 138, which draw on the definitions in the Environment Act 2021, will allow the Government to consider all matters considered in the existing assessment processes and are capable of capturing the substance of the proposed amendments. For Amendment 368A, the existing definitions already include cultural heritage. For Amendments 369A and 370, the definition of environmental protection includes “protection of people”, which would allow the Secretary of State to consider health-related matters.
Amendments 369A and 372 seek to include climate change in the definition. We are absolutely not relaxed about climate change. Our consultation sets out the challenges of addressing climate change through assessments, and reforming environmental assessment provides us with the unique opportunity to go further for the environment. These reforms allow us to consider the role that environmental assessment should play in addressing crucial issues such as climate change and the challenges of transitioning to net zero. Under the current system, these matters are often dealt with in a reactive, inconsistent and ineffective manner, generating paperwork but not the change we need to see. Additionally, climate change is not a single issue but a network of interconnected considerations. Subsection (3)(c) already includes
“natural systems, cycles and processes”
to ensure that matters such as climate change can be addressed. Many of the indicators to be used in the assessment will also relate to climate change.
Amendment 371 seeks to specify protected sites in the definitions. We are confident the definitions are sufficient to ensure that protected sites will form part of the new system.
I thank the noble Baroness, Lady Taylor of Stevenage, for tabling Amendment 375, and the noble Baroness, Lady Hayman of Ullock, for Amendment 369 on the mitigation hierarchy. For the first time, we have legislated to include the mitigation hierarchy in law. We have brought forward an amendment to bring the hierarchy more in line with current practice.
On Amendment 372A in the name of the noble Lord, Lord Stunell, and Amendment 377 in the name of the noble Baroness, Lady Hayman of Ullock, we recognise the need to maintain the highest environmental standards, which is why we included a clause setting out our commitment to non-regression. The drafting of Clause 142(1) mirrors the provisions of the EU-UK Trade and Cooperation Agreement to ensure that we abide by our previous commitments. We have also included significant duties to consult and given Parliament the opportunity to scrutinise regulations through the affirmative procedure. The Bill requires public consultation and regard to the environmental improvement plan when setting environmental outcomes. They will be subject to parliamentary scrutiny via the affirmative procedure and to our overarching commitment to non-regression, so I hope that my noble friend the Duke of Montrose’s concerns are assuaged.
Amendment 373, in the name of the noble Baroness, Lady Hayman of Ullock, seeks to link EORs to baseline studies. Baseline studies will remain a key means of measuring the effect of development on the environment. Given recent catastrophes, such as bird flu, we intend to modernise the process to meet the challenges of the 21st century. For this reason, we wish to preserve flexibility in how we shape assessment. We will work with experts to agree methodologies and set these out in regulations and guidance.
Amendment 374, in the name of the noble Baroness, Lady Taylor of Stevenage, would limit the power to make regulations on certain processes as these would need to be linked to “available” data. It would also limit the power to make regulations about the gathering of necessary data. This would be contrary to our commitment to non-regression in Clause 142.
On Amendment 378, the 17 UN sustainable development goals are crucially important. However, as the noble Baroness will be aware, the purpose of environmental assessment is to ensure that environmental issues are not overlooked in favour of the social and economic drivers of development activity. We feel it is important to maintain that focus to ensure that environmental issues are not sidelined exactly when they need our attention most.
Amendments 378A and 378B, proposed by my helpful noble friend Lord Lansley, seek to build greater flexibility into the new system. I reassure him that we intend the EOR process to be as streamlined as possible so that it is useful in informing decision-making. Although we indeed recognise the importance of energy security and resilience, it is vital that we fulfil our commitment to non-regression.
On Amendments 379 to 381, tabled by the noble Baroness, Lady Taylor of Stevenage, and Amendment 382 from my noble friend the Duke of Montrose, which mirrors the position in Amendment 181, I assure noble Lords that, in bringing forward environmental outcome reports, the Government are committed to respecting the devolution settlements. We are in discussions with the devolved Governments on how these powers should operate, including extending them to provide a shared framework across the UK. Interoperability between different regimes and competences will be fundamental as we develop our regulations.
On Amendment 383 in the name of the noble Baroness, Lady Taylor of Stevenage, I can confirm that greater accessibility is at the centre of our reform agenda. We want to ensure that everyone is better able to use these reports to understand the impact of development on the environment, including decision-makers. The Government will develop prototypes and templates to make sure that the reporting process is more accessible. These will be tested as part of our commitment to user-centred design.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for her thorough and detailed response. I also thank all noble Lords who have taken part in the debate and those who expressed support for my amendments and what I am trying to achieve with them. It is good to see the noble Lord, Lord Randall, back in his place; we wish him well.
The noble Earl, Lord Caithness, asked whether I agree with him on inaction and action. I absolutely agree.
My amendments are designed to ensure high standards and protection, including of the climate. If the Government are not relaxed about climate change, as the Minister said, I do not understand why this is not part of the Bill and cannot be included. Having said that, my main concern is the Henry VIII powers the Bill confers. We will read Hansard and consider whether we want to return to this issue. In the meantime, I beg leave to withdraw the amendment.
Viscount Trenchard
“(e) protection for chalk streams in England so as to reduce the harmful impacts of excessive abstraction and pollution and improve their physical habitat”Member's explanatory statement
This amendment will ensure that the impact on chalk streams of relevant projects is explicitly considered, avoided wherever possible, or mitigated.
Viscount Trenchard (Con)
My Lords, I apologise that I have not participated at Second Reading or earlier in Committee on this landmark Bill, but I am grateful for the opportunity to move my Amendment 372ZA, which seeks to secure greater protection for our wonderful chalk streams, which I believe play a uniquely important part in England’s landscape and natural environment. I thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for adding her name in support of the amendment. I declare an interest as the owner of a short stretch of the River Rib, a chalk stream in Hertfordshire. I salute the hard work and commitment of my right honourable friend Sir Oliver Heald, Member of Parliament for North-East Hertfordshire. I declare another interest, in that I am the president of the North-East Hertfordshire Conservative Association, which has recently adopted Sir Oliver as its parliamentary candidate at the next general election. Sir Oliver’s work to improve the environment, particularly the quality of the eight chalk streams in his constituency, is supported by very many of his constituents, of all political persuasions.
In his speech in another place on 25 April, my right honourable friend observed:
“The Government have taken powers in the Environment Act 2021 and the Agriculture Act 2020 that would enable a catchment-based approach to tackling the range of issues involved in river quality. The water plan, which has been released recently, shows where the investment would be, with fines imposed and money reinvested in improving water quality. One of the main recommendations was to have some sort of protection and priority status for chalk streams”.—[Official Report, Commons, 25/4/23; col. 619.]
Some of Hertfordshire’s chalk streams are in a worse state than others. I am fortunate in that the Rib, where it runs past my house, has never run dry, although abstraction undoubtedly contributes to a worryingly reduced flow in midsummer. Some 85% of the world’s chalk streams are in England, and the remainder are in northern France and Denmark. Many of the rare and beautiful habitats that our chalk streams undoubtedly provide suffer a daily onslaught of pollution and over-abstraction.
I welcome the Government’s decision to support the chalk stream restoration strategy published by Catchment Based Approach’s chalk stream group. CaBA is supported by and works with all the major stakeholders, including environmental NGOs, water companies, local authorities, government agencies, landowners, angling clubs, farmer representative bodies, academia and local businesses. Its chalk stream restoration strategy, published in November 2021, sets out how England’s chalk streams can be restored to a near-natural state.
A 2014 review of England’s chalk streams found that 77% failed to meet the required classification of good ecological status as assessed by the Environment Agency, 75% had been significantly modified from their natural state and 55% were at risk from over-abstraction. The primary recommendation of the chalk stream restoration strategy, entitled the “one big wish”, which is supported by all the organisations, companies and agencies involved in the report’s development and by the consultation responses from stakeholders, is for
“an overarching statutory protection and priority status for chalk streams and their catchments to give them a distinct identity and to drive investment in water-resources infrastructure, water treatment … and catchment-scale restoration”.
The Government’s response so far to the one big wish reads:
“Defra is currently looking for opportunities to deliver on this recommendation. The Retained EU Law (Revocation and Reform) Bill provides an opportunity to consider how stronger protections and priority status for chalk streams can fit into reformed environmental legislation”.
In addition, chalk streams have been given priority status in the stormwater reduction plan. Is the intention still to use the REUL Bill to achieve this goal? Does the Minister agree that, as this Bill already deals with the reform of some relevant retained EU environmental legislation affecting planning decisions, my amendment provides a good opportunity for the Government to achieve their stated objective of protecting chalk streams? It would ensure that the impact on chalk streams of relevant projects is explicitly considered, avoided where possible, or mitigated.
An enhanced status for chalk streams, including within the planning framework addressed by the Bill, would drive the investment and resources that have been severely lacking, not only for chalk streams but, as the report by the Environmental Audit Committee of another place made clear, for the protection and enhancement of biodiversity more broadly. It could mobilise resources from several sources, including the option contained within the ELM scheme for chalk stream investment.
Noble Lords may wonder why my amendment covers only chalk streams, as other types of rivers and streams are also in great need of investment. An integrated approach to restoring all types of habitat and associated species through the restoration of natural ecosystem function, particularly natural catchment function, helps to deliver multiple biodiversity benefits alongside a wealth of natural capital associated with restored aquifer recharge, tackling pollution at source and natural flood management, as argued in a Natural England report in 2018.
Nevertheless, the chalk stream restoration strategy argues that the global rarity of English chalk streams provides a potent justification for singling out this river type among others. There are other justifications—for example, the fact that chalk streams are under particular stress because many of them flow through a highly developed landscape; they have been particularly stressed by the myriad ways in which their channels have been modified over time; they have distinct biodiversity, cultural and heritage value; and, for hydrological reasons, they are far less capable of self-repair than higher-energy rivers. Very few chalk streams enjoy protected site status, and an additional degree of protection would act as an exemplar to show how such an integrated approach can be used for these streams, ultimately showing the way for natural recovery of all rivers, streams, fens, lakes and other freshwater habitats.
There is a wide divergence of outcome to be shown with abstraction. All the designated chalk streams have abstraction targets within the CaBA chalk stream group target of no more than 10% of catchment recharge but, on the most extreme examples of the “ordinary” chalk streams, over 50% of the effective catchment recharge—in other words, the rainfall that sinks down into the aquifer—is abstracted, and in dry years that becomes all the effective recharge for those aquifers.
To take another example: on the few designated chalk streams, between 75% and 90% of sewage works remove phosphorus through advanced tertiary treatment. That proportion falls to between 18% and 30% on the ordinary chalk streams. This is why all the partners in the CaBA chalk stream group identified a higher status of protection as key to delivering the aims of the strategy.
The chalk stream restoration strategy sets out a comprehensive and interconnected series of recommendations, covering a range of actions across the catchment needed to restore chalk streams to ecological and functional health. They encompass abstraction reform, water quality, species and habitat improvements in both variety and abundance, land management and development. The Government have shown a commitment to support the recommendations of the report, subject to consideration, and to the suggestion of a specific category of protection. There is a need to ensure that the Government deliver on those commitments. Incorporating my amendment into the Bill would support that aim. I beg to move.
Lord Lucas (Con)
My Lords, I very much support what my noble friend has just said, having grown up in that part of the country and spending many happy decades fishing there. I just ask my noble friend the Minister, if he is going to give special consideration to chalk streams, to end the discrimination against Sussex. In particular, my local chalk stream should be included in the list, which it is not at the moment. The fact that it is called the Lottbridge Sewer should not be enough to exclude it.
Baroness Jones of Moulsecoomb (GP)
My Lords, it gives me great pleasure to support every word that the noble Viscount has just said—a rare event.
I have recently joined a group of people who meet monthly to assess the health of the chalk stream that runs through their village by counting river flies, and the experience has been a real pleasure. There is nothing as satisfying as seeing a healthy ecosystem, and luckily theirs is.
However, as the noble Viscount has pointed out, chalk streams are extremely vulnerable. In fact, the amendment should not be necessary at all because we should automatically be protecting the health and well-being of our chalk streams. So I very much support the amendment. I hope it comes back again and again and we vote on it—or perhaps the Minister will snap it up as a good thing to do.
Lord Deben (Con)
My Lords, I too am not always in agreement with the words of my noble friend, but I strongly support the amendment.
The key point is that chalk streams are more vulnerable than almost any other water because they are concentrated in areas of considerable development and they are subject to considerable abstraction and the results of sewage disposal. There is therefore a particular reason for isolating them as opposed to other things.
The crucial reason is that we are fortunate enough to have the majority of the chalk streams in the world. Britain needs to be very careful about protecting those few things that we have almost uniquely. I have to say to the Government that, awful though the REUL Bill is, this subject is clearly not going to be part of it, so this is an ideal opportunity to make that statement.
I fear that I know precisely what the civil servants will have said to the Minister. First, they will have said: “First of all, we really need a wider range of things here. We need to apply this much more carefully because otherwise people who will not be covered by this will object”. Secondly, they will have said: “It’s very difficult to isolate chalk streams when we are not covering this, that and the other”. Thirdly: “There will be other opportunities to do this in other legislation”. Fourthly: “This is a very big Bill already and we don’t want to burden the system with anything more”. Fifthly: “This particular amendment doesn’t cover all the chalk streams that ought to be covered, and therefore it would be better to wait until we can cover them all”.
There may be other things that civil servants will have told my noble friend, but I suspect that those are the first five. I suggest to him that this is the moment in which he does not listen to, “Better not, Minister”, and puts in, instead of that, “Be off, civil servant!” We need to have this. It is not perfect, but if we wait for perfection, we will do nothing. I just hope that the Minister, in whom I have great confidence, will be able to say, “This is a sensible thing to do and I can’t really think of any good reason for not doing it”—and therefore will do it.
Lord Randall of Uxbridge (Con)
My Lords, briefly, I join all those who have supported my noble friend’s amendment. I think that if my noble friend the Minister were sitting on the Back Benches he would probably have added his name. We know he has a difficult task but we wish him well in his endeavours.
The Earl of Caithness (Con)
My Lords, how sensible it was of my noble friend Lord Trenchard to degroup this amendment from the previous group, which already had 29 amendments in it. This is far too important an issue to be wrapped up in a comprehensive debate.
We should not be in the position of having this debate today. One of the reasons why we are is that the NRA was abolished. When we privatised water—I had the privilege of taking the Bill through this House—we set up the National Rivers Authority. There is nobody better at protecting species or habitat than former poachers, so we put into the National Rivers Authority those who had been in the water authority; one day they were the enemy, and the next they were the best gamekeepers you could possibly have. Under the NRA, there were distinct improvements within the water industry and it was a pity that it got amalgamated into the Environment Agency. It lost its focus and its speciality, and then of course the Environment Agency’s funding was cut.
Having said that, I thank the Government for what they have done. Credit must be given to them: they have a water plan and a storm-water reduction plan, and they have now given powers to Ofwat to consider the environment, which is a huge step forward. They have supported the catchment-based approach and, in particular, they are supporting the national chalk stream restoration group.
We have been in a similar position many times before. There have been lots of reports and discussions, but maybe—just maybe—this time we might get it right. Everybody is on the same page and singing the same song. They are supported by the Government, who have said that the door is slightly ajar. Let us barge through it now and do something for these chalk streams.
The restoration group, as my noble friend Lord Trenchard said, is there to drive progress by government and regulators, water companies, landowners, NGOs, river associations and individuals passionate about their rivers. Are we not lucky still to have people such as Charles Rangeley-Wilson, who is chairing the group and has given hours of his life to chalk streams? The Government must make better use of this input. We are so lucky to have those individuals, and I thank them.
I reiterate what my noble friend said about the one big wish. This amendment is designed to help push that one big wish through into beneficial action for the chalk streams. They are hugely important. I have to admit that they were not important in my life until recently; I was much more concerned about the tumbling rivers in the north of Scotland than chalk streams. But how we manage chalk streams is the litmus test of how the Government are going to handle all the difficulties around improving the environment.
One of the big problems in chalk streams is sewage, which has been in the headlines nearly every day for many months now. We had a “sorry” from the water authorities yesterday on this. If you go to Dorset to walk along the banks of the River Lym, you will see notices saying to keep out, as there is E. coli in the river. That is unacceptable in this day and age but sewage is not the only problem. It will be quite easy, now that the cost-benefit analysis has changed, to put in tertiary sewage works at Evershot and at Toller Porcorum on the upper reaches of the River Frome. That is not a problem.
More of a problem is going to be the septic tanks. A lot of villages, as well as individual cottages, houses and farms, are still within the catchment area of chalk streams and all with septic tanks. Those tanks cause a huge amount of problems, particularly in dry weather. The summer months, when the water flow is low and sewage tanks which are not up to standard are disgorging into the drains or waterways, are the real problem. It is an underestimated problem but it will be a huge one for the Government to have to tackle.
Besides that, the Government will have to tackle us humans in a different way. They have to be prepared to say to us humans: “You cannot fill your swimming pools, you cannot water your gardens or do the abstraction that you did”, as this is only going to be compounded because of climate change. In parts of France—we have not even got to the really hot part of the summer—locals are being told that they cannot do things with water that they have always taken for granted. This is going to be a hugely difficult message to get across, but we need to change our habits for the benefit of the environment. I hope that my noble friend will continue to push on this, but he needs to get the message across that everything being done, which will be costly, is for the environment and we have to adapt to it.
My noble friend will have to take on farmers too. There cannot be, within the catchment areas, fallow fields for much longer. There cannot be maize or salad crops grown, unless there is an immediate crop coming along, because if there is a fallow field you will get run-off and sediment. Noble Lords may have seen the news recently from parts of Italy, where there has just been six months’ rain in one and a half days. The run-off from that has been horrendous. If run-off gets into water—into chalk streams—that causes huge problems. It causes sediment on the base of the stream, which makes it much more difficult for the trout to spawn. If the trout have spawned and you get sediment, you are going to suffocate the eggs. The farmers are another challenge that the Government have to take on.
Another challenge is the highways department, as an awful lot of sediment comes off highways. I see that one particular recommendation from the chalk stream restoration group is about highways, but it alarms me that it has a nasty red cross beside it, where it says there is no action at all yet. Can my noble friend tell me what action he is taking to berate the Department for Transport and local authorities, so that they make arrangements such that the sediment which comes off the roads does not go unfiltered into our precious chalk streams?
There might have to be arguments with those who support beavers. I am a supporter of beavers in the right place, but in most cases beavers and chalk streams do not go together. What the beavers will do will slow down the water, increasing the sediment. It comes back to the problems that sediment causes, which I have just been describing.
Then of course there is water abstraction in its widest sense; I have talked about that a little. The NRA was tackling that hard, and I pay tribute to more individuals: people such as Richard Slocock, who stopped the River Piddle in Dorset being a dried-up bit of river. He worked with the NRA and the Piddle has now become one of our classic chalk streams again. Sir John Betjeman, when he was at Marlborough, was filled with glory by the sight of trout in the River Kennet. When I was at Marlborough, the trout did not have quite the same effect on me. But very close to where Sir John Betjeman was filled with glory, my noble friend Lord Benyon on the Front Bench—Richard Benyon, as he then was as Minister for Agriculture—stood on completely dry land in the middle of that river and later remarked in the House of Commons that the Kennet
“was as dry as the carpet”—[Official Report, Commons, 8/12/11; col. 405.]
that he was then standing on.
Baroness Hayman of Ullock (Lab)
There is an enormous number of amendments, and I somehow did not spot it. If I had spotted it, my name would be on it.
The Earl of Caithness (Con)
If I were a fisherman on one of the Dorset rivers now with the mayfly hatching, I would have caught a most wonderful trout at the end of my line.
I say to the noble Baroness that I was alarmed, because I know that, in her heart of hearts, she is very supportive of this. However, her boss Keir Starmer said that he wanted to develop on green land. As my noble friend Lord Deben has just said, our chalk streams are going through highly developed land already. Which side of the fence is the Labour Party on? I hope the noble Baroness will reply.
I will ask of both Front Benches the question I was going to ask of my noble friend the Minister. Are they prepared to give the commitment to our chalk streams that the chalk streams demand? To remedy the chalk stream problem, it is not a question of days, months or years, but of decades, and an awful lot of interests have to be tackled. Unless we can get reassurance that all the parties across the House have that commitment, our chalk streams will not be in the health they should be
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I support Amendment 372ZA in the name of the noble Viscount, Lord Trenchard, to which I have added my name. The noble Viscount has introduced his amendment and covered the subject fully, and I agree with all his comments.
Many in this Chamber will remember during the passage of the Agriculture and Environment Acts the debates on the importance of chalk streams, so ably led by my late noble friend Lord Chidgey. If he were here, he would certainly be taking part today. No doubt he is looking down from above on our deliberations today and wishing us well.
Chalk streams are a vital environmental resource and should be protected. Those noble Lords who watched David Attenborough on the “Wild Isles” television programme recently will know that 85%—I hope I have remembered that correctly—of the world’s chalk streams are in the UK. That does not mean that, because we have plenty, we can ignore them; quite the opposite. It means we must preserve them at all costs.
A year ago, my husband and I moved from our beloved Somerset to Hampshire, partly to be nearer our family. I have discovered, for the first time, the beauty and tranquillity of the county’s chalk streams—the crystal-clear water, the soft babbling sound of the water running over the riverbed and, often, the bright green watercress growing on the edge of the water and the riverbanks.
However, this idyllic description is not the sight that meets the eye in all parts of the country. Many chalk streams suffer from pollution, as the noble Viscount has said, making the waters discoloured and smelly. There have been numerous questions and debates about the effects of foul-smelling sewage discharging into our waterways. Many chalk streams suffer abstraction on a grand scale and the flow of the river is diminished as a result. As we all know, it is often the rate of flow of a stream that helps to keep its waters clear.
While there is currently a chalk river priority habitat in place which recognises their international rarity and biodiversity, this is not protecting them from sewage discharges. However, the chalk stream strategy also has an important part to play. Today’s announcement by the water companies that they plan to tackle the problem of sewage overflows by 2030 through massive investment in sewer upgrades is to be welcomed, but I fear it may be a little while before this is effective in protecting our precious chalk streams, especially from future development pressures.
Clause 138(c)(e) is the ideal place for this amendment to be added to achieve the desired result we are all looking for. I am extremely grateful to the noble Viscount for raising this vital issue and I hope the Minister will be able to accept this amendment. All speakers have strongly supported this amendment and I agree completely with the comments made by the noble Lord, Lord Deben. Chalk streams are an invaluable asset and must be protected and preserved, so that future generations of children and adults can enjoy them to the full.
Baroness Hayman of Ullock (Lab)
My Lords, I am delighted to see the Minister in his place because it gives him the opportunity to make me gruntled again. If he is doing the next two groups, I am beginning to think I should set him a weekly target to ensure that I am never disgruntled again with any of the things he is dealing with.
To be serious, this is a critical environmental issue. I thank the noble Viscount, Lord Trenchard, for tabling this amendment and for his excellent introduction. I also join the noble Baroness, Lady Bakewell, in her tribute to Lord Chidgey. He was deeply committed to this issue, and I think we should recognise that.
As we have heard, England has 85% of the world’s chalk streams, and they are at risk. They are very, very precious, and I really do not think this should be a political issue; it is something we should all be getting behind, and we should all be supporting their protection. As at the noble Lord, Lord Deben, said, they are more vulnerable than other waterways. There are many reasons for that, and we have heard many during the debate: agricultural pollution; sewage pollution; the decline of native species, particularly invertebrates; the introduction of non-native invasive species; development; population growth; and the fact that we simply use and waste far too much water. On average in Britain, we use more water per head per day than most other European countries. Most pressing are the low flows and the chronic abstraction, which noble Lords have talked about. We have also had issues in recent years with not having enough rainfall to support the levels of abstraction, even though people have been given warnings about the damage that that can cause.
As noble Lords have said, we support the reform of the abstraction licensing system, which is currently allowing too much water be taken from our chalk streams. We need to look at more robust infrastructure to support that, dealing with the ongoing strain of an unpredictable climate and rising populations. We need greater investment in storage capacity, and water metering needs to be managed more and developed.
One of the recommendations of the chalk stream restoration group—it is really good that the Government are getting behind it and supporting what it is trying to do—is that chalk streams should be given overarching protection and priority status. That is the one big wish we have heard noble Lords talk about. If there is anything the Minister should take from this debate and previous debates on the Environment Act, for example, it is that the Government really must give chalk streams a status that reflects that they are not just locally precious but, as we have heard, globally unique. This amendment would provide those protections. We support it and I urge the Minister to get behind it. If the Government cannot do anything today, I urge them to bring something forward.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I refer to my entry in the register. Amendment 372ZA seeks to amend the definition “environmental protection” to include specific reference to the protection of chalk streams. It was so eloquently moved by my noble friend Lord Trenchard, and I pay tribute to his and other noble Lords’ passion on this issue. I assure them that I would not stand at this Dispatch Box and in any way jeopardise the future recovery of our chalk streams. I was in one last weekend and I will be in one again this weekend, as the mayfly start to hatch.
Mention was made of the catchment-based approach— CaBA—which is a wonderful piece of partnership working, so ably led by Charles Rangeley-Wilson. I was fortunate enough to visit him in Norfolk, to see where he has reconnected with the valley bottom or river bottom chalk streams that were previously canalised for water meadows, sometimes hundreds of years ago. There are remarkable benefits, which we measure rather technically in the water framework directive, but the key indicators, such as ranunculus and fish populations, can be massively enhanced by many measures that he and others carry out. The work was led in this House by Lord Chidgey and, of course, in Hertfordshire by my right honourable friend Sir Oliver Heald, whom I met just a couple of weeks ago to talk about this.
There is undoubtedly some good news about chalk streams. The Mimram, which I visited in the past and which suffered from massively low flow, has seen some improvement, but there is still huge pressure on these remarkable places. I am on record talking about them as our country’s equivalent of the rainforests: these areas are, in large part, particular to England—85% of them are here—and we want to see them thrive. Some excellent points have been made.
This Government are committed to protecting chalk streams, which we defined as priority sites in the Storm Overflows Discharge Reduction Plan, with a target of a 75% reduction in harmful sewage spills by 2035. In our Plan for Water, the Government also committed to reviewing the impact on chalk streams of private sewerage systems—my noble friend Lord Caithness made this point well. The pressures on them are from sewage outflows and inadequate sewage-treatment plants, farming and run-off, and serious problems due to misconnections and private sewerage systems that are not functioning properly.
I say to my noble friend Lord Lucas that we will certainly address the Lottbridge Sewer—how on earth it got that name I do not know—and make sure that it is part of our consideration of chalk streams. To the noble Baroness, Lady Jones, I say: the riverfly project of which she is part is one of the great examples of citizen science. It sees an enormous number of people assisting the regulator—the Environment Agency—in identifying when a problem occurs, so that it can then step in.
My noble friend Lord Caithness mentioned my visit to Marlborough in 2010, just after I became a Minister. I stood in a riverbed that was dry because water was being extracted from the Kennet and pumped out of the catchment to provide water for the people of Swindon. They needed water, but it should not have come out of the catchment. This really damaged a very special SPA and SSSI, but I am delighted that, through measures that the Government drove through our abstraction incentive mechanism, Thames Water then delivered water from the same catchment—the Thames—rather than the Kennet. The Kennet is now in a better, although not perfect, state. There are now huge opportunities, through private sector green finance initiatives and habitat restoration—driven by government actions, through ELMS and our Plan for Water—for chalk streams’ amazing natural environments to be restored, so that we can show the world that we lead the way on river restoration.
I certainly share my noble friend Lord Trenchard’s concern for the protection of chalk streams. I stress that the definition of “environmental protection”, for the purposes of the environmental outcomes report, has been drafted to ensure that the Secretary of State is capable of setting outcomes across the breadth of environmental concerns, very much including chalk streams.
Lord Deben (Con)
I am sure that my noble friend’s comments are absolutely acceptable and I see perfectly well why he does not want this here. But is it possible just to consider whether attention might be drawn to this point somewhere else in the Bill? As he said, it is very special; I say this with a perfect lack of interest because, coming from the flatlands of Suffolk—where I am afraid we do not have any chalk streams—I am particularly keen to support the noble Viscount. Might the Minister consider putting this somewhere else in the meantime?
Lord Benyon (Con)
I will have to have discussions with colleagues and officials to see whether there are other areas of legislation, or areas in this legislation, where we could reassure the House. I have listened and will continue to listen on this, and I hope that noble Lords will reflect on this.
Lord Berkeley of Knighton (CB)
My Lords, the Minister mentioned the Kennet case. Is he satisfied that enough legislation is in place to prevent that happening again?
Lord Benyon (Con)
A decade ago, we provided a mechanism whereby overextraction would require action to be taken, in this case by water companies. It was a fairly geeky measure called the abstraction incentive mechanism, and it worked. Countless other measures can and should be taken, and our direction to Ofwat and the commitments in our Plan for Water will drive this forward, as will our abstraction reforms.
Rivers such as the Kennet can be affected by something incredibly small. Three miles of the Kennet’s ecosystem was destroyed about seven years ago by about an egg cup of a chemical called chlorpyrifos, which went through the drainage system—which is the responsibility of the local authority and the water company—into the river. That tiny amount wiped out life for about three miles. That is an indication of how fragile these systems are and how we must have protections that can trace this, make the polluter pay and make sure that this never happens again. It is incredibly important that we do this.
Viscount Trenchard (Con)
My Lords, I thank all noble Lords who have participated in this debate. I am greatly heartened by the universal tone of the speeches and contributions made.
I thank my noble friend Lord Lucas for his support. It is most unfortunate that his local chalk stream has the name it does; I do not know how easy it will be for him to change it, but I imagine there is some kind of complicated procedure for changing names—there is for roads, so there should be for rivers as well.
I am also very happy to have received support from some noble Lords whose support I am unaccustomed to receive—in particular, the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Deben. To answer my noble friend’s point, I am sure that my noble friend the Minister, together with his officials, could prepare a comprehensive list of defined chalk streams, because I am sure that we have not quite caught all of them. It may never be a perfect list, but at least, as my noble friend said, it would be a pretty good and near comprehensive one.
My noble friend Lord Caithness made a strong, comprehensive speech of support, for which I am most grateful. I agree with what he said about the Environment Agency and how it conducted itself immediately after its establishment, because I had to deal with it at great length over developments in the River Tamar. I also endorse entirely what he said about the small group of determined people who work so hard to protect our beautiful chalk streams.
I was also grateful to my noble friend for riling the noble Baroness, Lady Hayman of Ullock, into supporting my amendment—I think riling is the right word in this context.
Baroness Hayman of Ullock (Lab)
There was no need for riling.
Viscount Trenchard (Con)
If it should be necessary for me to bring back this amendment on Report, I shall be happy to receive the noble Baroness’s support.
I am also most encouraged by the support that my noble friend the Minister has given to my amendment. I had heard from my right honourable friend Sir Oliver Heald that he and the Minister visited the Mimram together, which is one case of a chalk stream whose condition has improved, and I am grateful to the Government for the support that they have given to date. I am particularly grateful to my noble friend for the support that he has given today. I think he stopped short of committing to provide the specific statutory protection that chalk streams deserve, but I am grateful for his offer to engage in “granular” consideration. I am never quite sure what “granular” means, but it is one of those words that is used more and more nowadays. Anyway, I am very happy to accept his invitation to do that.
I would like to wish my noble friend tight lines as he casts his fly again next weekend. In the meantime, I beg leave to withdraw my amendment.
Baroness Scott of Bybrook
“(aa) any proposals for increasing the extent to which a specified environmental outcome is delivered,”Member's explanatory statement
This amendment is consequential upon the second amendment in the Minister’s name to clause 139. It inserts a provision which is equivalent to the sub-paragraph removed by that amendment from clause 139(4)(b).
Member's explanatory statement
This amendment removes sub-paragraph (i) from subsection (4)(b) of clause 139, so that subsection (4)(b) better reflects the “mitigation hierarchy” which is currently often applied as part of an environmental assessment.
Member's explanatory statement
This amendment removes sub-paragraph (iv) from subsection (4)(b) of clause 139, so that subsection (4)(b) better reflects the “mitigation hierarchy” which is currently often applied as part of an environmental assessment.
Member's explanatory statement
This amendment is consequential upon the third amendment in the Minister’s name to clause 139.
Member's explanatory statement
This amendment is consequential upon the first amendment in the Minister’s name to clause 139.
Member's explanatory statement
This amendment is consequential upon the first amendment in the Minister’s name to clause 139.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment is consequential upon the first amendment in the Minister’s name to clause 139.
Lord Randall of Uxbridge
“Purposes and plans of protected landscapes(1) National Parks, the Broads and Areas of Outstanding Natural Beauty must be managed in order to contribute to—(a) restoring, conserving and enhancing biodiversity and the natural environment;(b) meeting environmental targets under Part 1 of the Environment Act 2021 and the Climate Change Act 2008;(c) the implementation of any relevant local nature recovery strategies under section 104 of the Environment Act 2021;(d) the delivery of an environmental improvement plan prepared under section 8 of the Environment Act 2021; and(e) equitable opportunities for all parts of society to improve their connection to nature of those areas and the enjoyment of their special qualities.(2) The purposes included in subsection (1) must be prioritised in addition to the purposes listed in section 5 of the National Parks and Access to the Countryside Act 1949, section 2 of the Norfolk and Suffolk Broads Act 1988 and section 87 of the Countryside and Rights of Way Act 2000.(3) Relevant management plans must include targets and actions intended to further the purposes specified in subsection (2).(4) Relevant management plans include plans under section 89 of the Countryside and Rights of Way Act 2000, section 66 of the Environment Act 1995 and section 3 of the Norfolk and Suffolk Broads Act 1988.(5) In exercising or performing any functions in relation to, or so as to affect, land in a National Park, the Broads or an Area of Outstanding Natural Beauty, any relevant authority must further the purposes specified in subsection (2) and the targets and actions in the relevant management plan.(6) The Secretary of State must maintain a publicly available list of relevant authorities who are to comply with subsection (5), publish a statement setting out instructions for relevant authorities, and review this list and statement at least every five years.(7) A management plan may not be made operational until it is reviewed by Natural England and approved by the Secretary of State.”Member's explanatory statement
This new Clause supplements the statutory purposes of protected landscapes by giving them additional purposes. Key parts of existing legislation, such as the Sandford Principle, would still apply. The amendment also places stronger duties on relevant authorities and updates requirements for protected landscape management plans, to ensure that all relevant authorities take more action to recover nature and tackle climate change within those landscapes. This implements key recommendations from the Glover Review of Protected Landscapes.
Lord Randall of Uxbridge (Con)
My Lords, the Government have set themselves a tremendous triple task: by the end of the next Parliament, we must protect 30% of the UK for nature; also, by 2030, we must halt the terrible decline in British wildlife, which has been marching on for centuries; and, by 2050, we must end the era of fossil fuels and create a net-zero economy. I am proud of the role that this House played in setting the world’s first legally binding target to halt the loss of biodiversity during the passage of the Environment Act. I am proud of the role that my noble friend Lord Goldsmith and others played in securing a new global biodiversity framework with the same ambitious objectives.
The question before us today is whether we will make the land management reforms we need to deliver those three big promises. Serious improvements in land management are definitely needed. The abundance of priority species in England has declined by a staggering 82% since I was a boy and continues to decline by a further 2% a year. Instead of locking away carbon, 87% of English peatlands are still net carbon emitters. By some expert estimates, just 3% of the land is properly protected for nature. If we are going to turn things round, the UK’s great landscapes will be critical to our success.
Together, the national parks and areas of outstanding natural beauty cover a quarter of England. They are home to nine out of 10 threatened bird species and contain half of England’s priority habitats. From the chalk streams of the Chilterns, which we have discussed, to the blanket bogs of Dartmoor, they contain some of the rarest and most extraordinary habitats in the world.
Many of us probably imagine that our protected landscapes are already a backbone for biodiversity protection. Unfortunately, the truth is quite different. Nature in many protected landscapes is seriously deteriorating. Only 26% of sites of special scientific interest in national parks in England are in favourable condition, compared with a national average of 38%. In other words, our most important sites for biodiversity are often in worse condition inside protected landscapes than they are elsewhere. Critical habitats, such as peatlands, continue to leech out carbon as they are dried, overgrazed and degraded.
Baroness Willis of Summertown (CB)
My Lords, before speaking to the amendment, which I strongly support, I remind the Committee of my role as a director of Natural Capital Research Ltd.
I see the amendments as really important to meet not only our environment targets but the COP 16 targets, to which the Government signed up last December to achieve at least 30% of our landscape as “protected for biodiversity” by 2030. How close are we to this target? According to JNCC estimates of protected areas in the UK, 28% of our land is already protected. Although 3% in seven years does not seem too bad, that percentage includes national parks and AONBs; if we take those out, the total amount of protected land is reduced to around 11.35%. In fact, without including the national parks, many people, myself included, would agree that there is no chance we will achieve 30 by 30. I know that the Minister is very keen to reach that target; he told me that it is written above his desk, so I am holding him to that.
Why can we not include national parks in that figure? That seems really counterintuitive. Although most people think of national parks as beautiful biodiverse landscapes, we need to think again. The vast majority of our national parks and AONBs are not currently managed for their biodiversity; in fact, biodiversity is not in their strategic plan and is not required of them. As the noble Lord, Lord Randall, explained very well, this was pointed out in the excellent Glover review on national parks and AONBs four years ago. What the review suggested was that we need urgent changes to our legislation on national parks so that we make them focus strategically on biodiversity conservation and enhancing natural capital. But it gets worse: it is not that they just do not pay attention to doing that; if you looked at some of our national parks, you would think they were doing the opposite of what is required for biodiversity conservation and meeting our environment targets.
I will give the Committee some examples; the noble Lord, Lord Randall, has already given one on the SSSIs. One of the environmental targets we set this year was a clear target for clean and plentiful water. This is not being met in most of the rivers of our national parks. For example, the River Dove, one of the most scenic rivers in the Peak District, recently had its ecological status measured, and its surface waters reached 6% of what would be classified as “good ecological status”—that is pretty poor. This goes on. In the Brecon Beacons, 27 sections of the River Wye missed their pollution targets last year as a result of agricultural land run-off and sewage, as we have seen in the news today. These are not just cherry-picked examples; there are numerous examples such as these of the status of our rivers inside national parks.
The target for clean air is another case. We know that one of the most widespread causes of pollution is from traffic, yet in the last five years we have had three major roads agreed to either around the edge of a national park or through the middle of an area of outstanding natural beauty: the A27 bypass on the boundary of the South Downs National Park, the A47 link road outside the Peak District National Park, and the A66 Northern Trans-Pennine road, which runs right through the middle of an AONB.
Our third target is to enhance our thriving wildlife. The problems meeting that target seem even worse in national parks because, along with the SSSIs having a worse rating inside park boundaries than outside, 17% of the land in national parks is forested. That sounds good, until you realise that a third of that includes forestry plantations, many of which are managed by the Government’s own Forestry England. For example, in Northumberland National Park, 20,000 hectares is forestry planation. These are monodominant plantations managed for their timber, and they are really bad for biodiversity; we cannot pretend that they are not. A fantastic meta-analysis published about six weeks ago looked at data from 338 plantation sites across Europe. In every site, it found lower biodiversity, lower species richness and lower abundance for plants, animals and micro-organisms. Even more worryingly, it found low organic carbon in the soil. We are looking for those soils as a “get out of jail free” card for some of our climate offsetting, yet we are planting forests that do the opposite.
I have cited a few of the brief facts and figures. It might seem as though I am cherry picking but, believe me, I am not; these are real problems. Therefore, I see Amendment 387 as extremely important, because we simply cannot include national parks right now as protected areas. They will not deliver what the rest of world thinks of when we talk about protected areas.
This amendment flags up the whole issue and would give us a legislative structure to say what is really going on in national parks. So, for example, when permits are considered for intensive poultry farms, we would know that there is a legislative process for someone to look at and weigh their effects on water quality. When the highways authority considers putting a road right through an area of outstanding natural beauty, it would have to consider the effects on habitat and air quality. When Forestry England considers a planting regime for these monodominant coniferous plantations, the broadleaves would get a much better hearing because of this amendment.
To sum up, this amendment would lead to our great landscapes having better management in the future. They would then really start to contribute to that 30 by 30 process—otherwise, I really do not know how we will achieve it.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have Amendment 471 in this group, which is on a different point. It would insert a new clause on the extinguishment of unrecorded rights of way; it is therefore about footpaths. I am extremely grateful to the noble Baroness, Lady Scott of Needham Market, and the noble Lords, Lord Berkeley and Lord Thurlow, for having put their names to this amendment. Like my noble friend Lord Trenchard, I have not participated in Committee until now, so I apologise for that. Before I get down to the business of the amendment, I need to declare an interest: I am a member of the Ramblers and have been briefed by it about the implications of this particular amendment.
So, to horse: if one opens up an Ordnance Survey map of England and Wales, one finds it criss-crossed with a mass of footpaths, bridleways and other tracks. It is a unique facility that allows anybody—and I do mean anybody—to travel the length and breadth of the country and do so without having to walk, or to walk only rarely, on any tarmac. I am currently walking from Land’s End to John o’ Groats for my private pleasure in stages of about 70 miles. We have just crossed the A66 that the noble Baroness, Lady Willis, referred to and have reached Haltwhistle, and we are travelling on to Scotland on our next session. During those 500 miles, you see every type of countryside, from every angle and, I must say, in every type of weather. Nearly all of the time, the paths are uncontested by the relevant landowner, but not always. Sometimes, obstructions are placed in one’s way. Some are subtle, such as nettles, brambles or thorns; some are not so subtle, in the shape of barbed wire.
An important aspect of this national network is its connectivity. Close a part of the footpath and the value of the whole is diminished, if not lost completely. One has to recognise that there is of course a trade-off between the rights of the landowner who wants to see their land respected and the walker who wants to enjoy our glorious countryside. However, there is a common interest between both parties in that they want certainty, and that is what this amendment and the background to it are all about.
The trade-off was recognised as long ago as 2000 by the then Labour Government. They provided in the Countryside and Rights of Way Act for a statutory right for existing footpaths and bridleways, but gave certainty to landowners by requiring that these be properly registered with the relevant local authority by 31 December 2025. Those not registered by that date would be lost for ever. At that time, a 25-year framework probably did not seem too demanding. In a Question for Short Debate on 2 April 2019, which was initiated by the late Lord Greaves and in which some noble Lords who I see today participated, the noble Baroness, Lady Taylor of Bolton, said:
“I shall intervene only briefly. I was Chief Whip in the Commons when the legislation went through, and I assure everyone here that it was not anticipated that there would be a difficulty within that timeframe. It is the problems that arose later, particularly the pressures on local government, that have got us into the position today where it is vital that we look at the timescale again”.—[Official Report, 2/4/19; col. GC 32.]
In the period since, various efforts have been made to persuade the Government to look at the timescale again. Some amendments have been tabled in Committee on other relevant Bills, notably the Agriculture Bill and the Environment Bill, to which the noble Baroness, Lady Scott of Needham Market, moved an amendment on 21 June 2021. Others have been made by way of Parliamentary Questions.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Hodgson of Astley Abbotts, and to continue the trend of the afternoon of unusual coalitions across your Lordships’ House after my noble friend Lady Jones agreed fervently with the noble Viscount, Lord Trenchard, on the last group. I entirely agree with everything that the noble Lord just said. I also very much agree with the two initial speeches in this group on Amendment 387, to which the Green group would have added our backing if there had been space. In the interests of clarity and making progress, I will constrain myself to speaking to four amendments: Amendments 467H to 467J in the name of my noble friend Lady Jones of Moulsecoomb —she unfortunately cannot be in your Lordships’ House because she has had to dash off to an emergency dental appointment; I think that we all feel her pain—and my own Amendment 480.
I have a slight structural problem in that those first three are amendments to government Amendment 467G, so I shall try to explain the situation—I hope the Minister will forgive me if I cross over some ground on the government amendment as well—and then briefly set out the details. The background is that maps of access land show people where they are allowed to exercise their current very limited right to roam in England. Public access to these areas of mountain, moor, heath and downland are mapped according to criteria drawn up by Natural England. These maps were published in 2004. The Countryside and Rights of Way Act requires them to be reviewed every 10 years, so this review should have happened in 2014. Then—we are back to the issue of deadlines—the Government extended that deadline by another 10 years and are now seeking to extend it to a full 25 years after the maps were first produced. The first maps took only four years to produce, so why is there this delay in updating them, especially in the light of the Government’s commitment to ensure that everyone lives within 15 minutes walking distance of a green or blue space?
The Government admitted in the other place that
“not all downland was mapped satisfactorily”.
This concession proves what organisations such as the Ramblers have said for a long time: there are areas of the countryside where people should and do have the legal right to roam but are wrongly prohibited from exercising that right because of the failure of the maps. The organisations that have been working on this issue have extensive lists of mapping errors and omissions, many of which have been recognised by Natural England but cannot be corrected until the mapping review takes place. Examples of this span from Cumbria to Northumberland, Somerset to Sussex.
Another failure in the current maps is that there are access islands, where the public have a legal right to roam but no legal means to access the land. Unless you can parasail yourself down into it, there is no way of getting there. These valuable recreation spaces could be opened up and connected to the access network. One example is Letcombe Bassett in Oxfordshire. The mapping review could also open up more downland, particularly in southern and eastern England, which has much less right to roam than upland areas. For example, only 0.6% of land in Kent has a right to roam, compared to 72% of the Peak District.
This mapping review might also open up access to waterways and woodlands, such as the majority of Forestry Commission land that has been voluntarily dedicated as open access land. This could open up access for a good half of the population who do not have it now. The need for a mapping review is clear, as it will give more people rights to access incredible nature sites. Given that it took only four years to do the original mapping, it is nonsense that it should take almost eight more years for the first review to be completed.
The government amendment seeks to remove the duty to conduct further reviews after this one—it will set things in stone when this final review is done and that is it. This looks like an exercise in the Government removing a statutory duty that they have continually failed to deliver, rather than having any real justification. These reviews should be regular and seek continual improvement, because there will of course be mistakes that are not recovered until after the next review. Noble Lords can read the details for themselves but, very briefly, Amendment 467H would allow five years instead of seven to complete the mapping review, Amendment 467J would allow extra rights for appeals and Amendment 467I would allow for a continuous review process. Those are the amendments in the name of my noble friend.
I come now to Amendment 480 in my name. It is interesting that it is very rare that the two Houses are talking about the same issue at the same time: my honourable friend Caroline Lucas had a debate today in the other place on the right of access to nature, which is fitting for these issues that people are very concerned about and which are very much at the forefront of the public’s mind. This Bill gives us the opportunity to address them.
My amendment is a “Let’s have a review” amendment. Noble Lords may say that this is a sign of your Lordships’ House modifying my instincts and making me look for a middle way, which goes entirely against my instincts. In September 2021, when we were debating what is now the Environment Act, I put down an amendment that said: “Let’s have a right to roam in England”. That is still where I want to go, but I am looking for others to back me and ways in which we might make progress in your Lordships’ House, so all this amendment does is say: “Let’s have a review in England about people’s right of access to nature”. Let us not forget that in Scotland, people have the right to roam over most of the countryside: not in front gardens or gardens, not in places growing crops or where you will do damage, but otherwise you can go where you will. By contrast, in England 1% of the population owns half the land—quite a few of them are very familiar to your Lordships’ House—and the other 99% have the right to roam on just 8% of the remainder. My noble friend’s earlier amendments would marginally improve that situation; this is looking for a really big improvement.
I will not talk at length, as I am aware of the time, but I have three quick points on the benefits we could all see from a right to roam. I was at an event this morning where the Rural Policy Group released its annual Sustainable Food report, and we were talking about citizen science, which the Minister was just praising in wrapping up the previous group. We were also talking about the internet of things; someone said how brilliant it would be if we could plant electronic sensors all over the countryside. Someone pointed out that we would have to really fix rural connectivity to the internet before this would go very far, but we could use those electronic sensors to map the numbers of dragonflies, certain birds or butterflies. Of course, if we had a right to roam, we could also have groups of citizen scientists roaming around the countryside doing that mapping for you at considerably lower cost and without all the issues around electronic technology.
Also on the Environment Act there was a great deal of discussion about litter. Much of the litter in the countryside is blown or washed there, and people exercising their right to roam can clean some of it up. Undoubtedly, the biggest argument of all is the issue of public well-being and public health. We know so much now about the need for public health to improve, and we know that the right of access to nature gives that improvement.
Baroness Scott of Needham Market (LD)
My Lords, I support and shall speak very briefly to Amendment 471 in the name of the noble Lord, Lord Hodgson. It is really important to recognise at the outset that his amendment is about one specific thing. It is not about the merits or otherwise of public access; it is about the future of the estimated 40,000 miles of historic public rights of way that were omitted from the definitive map in 1949 because the mapping was done in a great hurry. It is not about creating rights that have not previously existed; it is really important to recognise that.
I have form when it comes to public rights of way. For a decade, I chaired Suffolk County Council’s rights of way committee and have spent many happy hours looking at public map modifications and all the things that go along with that. These things are very time consuming, and there are a number of reasons why. One is the complexity of rights of way law. I do not think we are ever going to tackle that, because it would be really difficult to know where to begin; it has been built up over so many decades and centuries and it is a very complex area of law.
There is also the matter of the historical record and the time that needs to be spent going to the Public Record Office, looking at tithe maps and other documents and so on to get an understanding of whether something is or is not an historic public right of way. That is important because, in highway law, when something has once been a highway, it will always be a highway until there is a legal Act to stop it. There are some very lengthy statutory processes. All these add up to a huge demand on local authorities, which have less capacity than they did back in my day. Finally, there is the capacity of the Secretary of State and the appeals process. All these mean that every claim takes a long time to process.
Lord Blencathra (Con)
My Lords, I declare an interest as per the register. I apologise to the Committee that I have not previously participated in these proceedings, but I have been away a lot with the Council of Europe, monitoring elections in Montenegro and Bulgaria, and other places. As an aside, I must say, with Lib Dem Peers here, that Bulgaria adopted a proportional representation system. It has 14 political parties, organised into seven coalitions, and this was the fifth general election in two years we monitored, with exactly the same result as the other four. It has got a completely ungovernable country and, once again, a Government who will shortly collapse.
I say to the noble Baroness, Lady Bennett of Manor Castle, that we have 250,000 miles of footpath, and we will shortly have completed 2,000 miles of the King Charles III England Coast Path. That seems to me to be an awful lot of mileage for people to walk on, but of course there are some right to roam fanatics who want to make a political point about having the right to roam on anyone’s land. I think it is more important that we develop footpaths and make sure they are open for access by ordinary people in every part of the United Kingdom.
I really must congratulate my noble friend Lord Randall on an outstanding speech today, moving his amendment; it was highly persuasive. The current amendment is an important opportunity to further nature recovery aspirations across the 24% of England designated as national park or area of outstanding natural beauty. England’s areas of outstanding natural beauty and the national parks are even more important now as we face the climate, nature and well-being challenges of the 21st century. They are more important than when the iconic National Parks and Access to the Countryside Act was passed in 1949, as part of the World War II settlement.
I have lived in the Lake District National Park for about 20 years—just outside it now—and I can honestly say that the biodiversity of the national park is every bit as bad as some of the silage fields outside it, which are crop-bare three times a year and the hedgerows cut down to almost nothing. There is no better biodiversity in the national park. That is something which the amendment seeks to change, and I know the Government want to change it.
There is widespread recognition, including in the 2019 Landscapes Review commissioned by the Government, that aspects of the legislation need updating if our protected landscapes are to be able to rise to these 21st-century challenges and deliver the crucial benefits people and nature need. My noble friend’s amendment is a crucial opportunity to make these important changes, fulfilling the welcome intentions of the Government announced in last January’s initial response to the review. However, if the Government are minded to add a reference to nature recovery and biodiversity, it should be added, in my opinion, with equal priority to the current statutory purposes, not given primacy over the existing purposes. That is where I depart slightly from my noble friend: it should not be given priority over the other purposes but have equal weight.
I suggest also that the duty of regard placed on public bodies is strengthened and extended to encompass delivery of agreed statutory national park and AONB management plans. It is possible that a similar effect to the amendment, regarding statutory purposes, could be achieved if the Government and Defra, and my noble friend the Minister, asked Natural England, the statutory adviser on landscapes in England, to provide further advice or guidance to clarify interpretation of the current wordings, although I accept this would not give the same strength or security, or the signalling, desired by some concerned with the issue. However, I suggest that it might be an acceptable compromise if my noble friend’s amendment is not acceptable in any way to the Government. Without a slightly tweaked amendment or the compromise I have suggested, I am afraid we may miss the opportunity to build in appropriate and more effective tools to protect these landscapes at this critical time.
In my final comment, I say to my noble friend Lord Hodgson that I live near the A66 and, if I had known he was coming, I would have invited him in for a glass or two of Highland Park. I would hope that, after a few glasses, I could have persuaded him to give up this mad idea of walking the whole length and breadth of the country.
Lord Lucas (Con)
My Lords, I congratulate the Government on their 30 by 30 target. It is an enormous and ambitious thing to take on. In that context, I urge them to support my noble friend Lord Randall’s amendment. We have large areas of national parks and areas of outstanding natural beauty, a lot of which does not sensibly qualify for 30 by 30 at the moment. We have structures within them which could help drive them in that direction, if we pass the sort of amendment that my noble friend has suggested. I like proposed new subsection (5) in particular, which would make other agencies join in the purpose of the national park.
My Amendment 504GJC—after 30 years, I still do not understand how the numbering works, but that is where it is—concerns other effective area-based conservation measures. We are not, I think, going to get to 30 by 30 on the basis of national landscapes. We need a structure which allows not for nature protection to be provided somewhere else but for nature protection to be something that all of us can influence and be involved in.
Fortunately, the Convention on Biological Diversity has provided the concept of an OECM, which I think we can adapt in very positive ways. An OECM could be a corner of a park in a city, or a corner of a school playground that is developed in conjunction with the National Education Nature Park, which I see from the Natural History Museum is starting to be rolled out. It could be this great network of connection that we want farmers to develop across the landscape, so wildlife can move across it. It could even be golf courses, for goodness’ sake—I believe there is one golf course which allows daisies on the fairways. There is real scope for getting wildlife back into golfers’ lives—I have not yet met one who wants it but we will get there in the end.
It was one of the underpinnings of the Dasgupta report that everybody should have an appreciation of and involvement in nature. The structure of OECMs allows us to create that, involving everybody in getting to 30 by 30. The structure I have proposed in Amendment 504GJC has a low threshold, because you want people to be able to join in to begin with, without going through huge layers of bureaucracy, but you may well need a fiercer award within that to qualify for 30 by 30. It identifies an individual who has charge of the area and a purpose for it. This should be something personal which is down to a group of people or an individual landowner, which they are doing themselves and for which they are responsible, for which we can thank them for taking responsibility, but to which we can also hold them to account. I therefore very much hope that the Government will democratise 30 by 30, spreading it out and making it a national rather than a purely institutional ambition, and that they will give us the tools with which we can do that.
The Earl of Clancarty (CB)
My Lords, I support Amendment 387 in the name of the noble Lord, Lord Randall of Uxbridge.
This is not an area I usually speak on, and I apologise for not having spoken at Second Reading. I am prompted to speak for two reasons. The first is that I live in a national park—which is not so unusual, given that national parks account for 10% of the land in England; many colleagues will live in or near national parks. The second prompt was the very concerned letter that Trevor Beattie, CEO of the South Downs National Park—the newest national park, where I live—wrote to the Guardian in November last year, following the reporting of the 40% cut in real terms in government funding to England’s national parks in the last 10 years. I found this quite shocking, particularly considering current environmental concerns, and I asked an Oral Question on this back in January.
On the amendment in the name of the noble Lord, Lord Randall of Uxbridge, I am grateful for the helpful briefings from National Parks England and the Campaign for National Parks. I thank Trevor Beattie, South Downs chair Vanessa Rowlands and the rest of their excellent team for the morning I spent in Midhurst last week hearing about the work they do, as well as their ambitions for the future. I very much stress “ambition”. Other noble Lords have provided the technical detail but my argument is really a simple one of principle, or ambition, being turned to practical effect. If we believe that the national parks and other protected spaces are to be considered key resources in the fight against climate change and for nature recovery—not just conservation but recovery and biodiversity—they should be given as many tools as is required to be as effective as possible in these significant and urgent ambitions. Certainly, from my visit to Midhurst there is no doubting the expertise and dynamism of those who work for the parks, and these are measures that they would like to see in place and on a firm legislative footing.
It is clear that we live in a world now with quite different perceptions about nature and our relationship to it than the one that existed when the national parks were set up in 1949, when neither climate change nor biodiversity were concerns, let alone truly urgent ones, and the public have certainly become more aware of the issues and the need address them. The parks ought then to be afforded the legal powers commensurate with our modern understanding of the issues involved. National parks are special places. Almost 30% of the area of national parks is recognised as internationally important for wildlife.
Having said that, it is true of course that the fight against climate change and for nature recovery is a global one without any respect for borders, particularly in the case of climate change. One of the important phrases I heard last week was “permeability”, the importance of the borders and parks being permeable—that people, particularly children from all backgrounds, be encouraged to come into the parks. Another was “taking nature to your doorstep”, which links with what the noble Lord, Lord Lucas, was saying: that outside a park, there is movement in both directions because nature, or indeed environmental concerns, as I said, do not stop at the borders of the park. It seems that all this is about the NPAs having a strong voice that resonates both inside and outside their boundaries. Of course, access is not just about enjoying the parks for their own sake or in the interest of well-being, important though these aspects are. There is an immense educational value here too that needs to be tapped. So, maximising access to protected landscapes should play a significant role in levelling up.
Lord Thurlow (CB)
I thank the noble Lord, Lord Hodgson, for letting me add my name to his Amendment 471 concerning rights of way.
I have never been able to understand why the Government wanted to apply a guillotine to registering long forgotten and rediscovered public rights of way. The noble Baroness, Lady Scott of Needham Market, made a number of interesting points but one in particular stood out for me. No one is attempting the equivalent of a land grab here; there is no rights grab going on. There are no compulsory purchase order-type approaches over land. Rights of way are simply a public asset, and that really is the focus of my short remarks this afternoon.
The Government are keen to open up the countryside to the public. The noble Earl, Lord Clancarty, just used the wonderful phrase “taking nature to your doorstep”. Farmers are finding their subsidy linked to the greater good rather than acreage. Access to the countryside is increasingly and frequently cited as a provider of mental health benefits to urban dwellers, and rights of way are one of the very few means of rural access available nationwide. Rights of way have already been levelled up.
The Government have agreed to delay the cut-off date for registering public rights of way to 2031, a token extension, but there seems to be reticence to action their promise to repeal the deadline once and for all. The Bill offers the perfect opportunity for the Government to make good their promise. I would like to know who is prevailing upon the Government behind the scenes to create this anti-social interference with the existing rights of the public, and what entitles the Government to quash the revelation of former rights of way as they are brought to light. We are not requesting new rights of way, simply confirming those which may have existed for centuries. They may have disappeared from the record, but, if verified, have always been there. Surely it is the Government’s duty to protect these public rights.
The key to rediscovering ancient rights of way lies in long-forgotten archives or seldom-accessed archives belonging to public libraries, local authorities, the Church and similar institutions, and to folklore. In addition, they may be found on the ancient maps on the walls of estate offices on large estates. These important ancient rights will inevitably be revealed slowly as the evidence is discovered. Society should rejoice as the network quietly grows, granting greater public access to green spaces. Inevitably, this process of discovery will quietly continue over many years, indeed decades, and to close an ancient right of way is to remove a precious public asset. It is ironic that the Government should be in place to protect public rights, yet willing to abandon them.
As we have heard, there are already thousands of rights of way claims awaiting processing. Some have been in the works for years, and thousands of miles of unrecorded routes need further research. Why do the Government stand in the way of this public service, rather than welcome it? Lift the cut-off date, I urge the Minister, and make good the Government’s promises by supporting the amendment.
The Duke of Montrose (Con)
My Lords, I offer support to my noble friend Lord Randall on protected landscapes. We need to know where we are going on this. We are trampling through the devolved competencies. Luckily, Scotland is adopting green policies with even more enthusiasm than local authorities in England, but we always need to bear in mind that the original legislation was the National Parks and Access to the Countryside Act, and originally, and even today, some see the second part as more important, as we were hearing from the noble Baroness, Lady Bennett, and the noble Earl, Lord Clancarty.
I live in a national park in Scotland, and the Scottish Government are providing millions of pounds every year to staff it and provide facilities for the public. On my land, they have just provided £800,000 to improve a footpath. When we think of the value of national parks for nature, it is worth recalling that for a body called the International Union for Conservation of Nature, our park qualified only for level V, because the only limit they had in law was to preserve the topography. We need to make up our mind what level of nature conservation we desire.
A dedicated percentage of land for conservation and marine conservation areas was announced recently, and the Scottish Government have taken it up and announced a timetable for extension of their marine protected areas. This has brought a sense of desperation, particularly to the crofting counties on the west coast, because they see it as a hammer-blow to the crofting way of life, which requires buying livestock, cutting peat, fishing, weaving and crafts. This is a whole culture which could be lost. There are areas where we want to preserve the way of life, as well as nature. I hope that my noble friend Lord Randall’s efforts will point the way.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I speak to Amendment 387 in the name of the noble Lord, Lord Randall of Uxbridge, to which I have added my name, and to Amendment 475 in my name, to which the noble Baroness, Lady Jones of Whitchurch, has added her name. As an aside, today seems to be the day when Conservative Peers take a pop at the Opposition Benches. Perhaps the recent election results are driving them.
However, I first address Amendment 475, which seeks to ensure that wild camping is included in open-air recreation. I tabled this amendment after hearing the news that Dartmoor National Park was banning wild camping on its land, and this ban had been upheld in the High Court—a win, apparently, for a hedge fund manager. That is a prime example of the wealthy preventing the less well off from enjoying the environment. I have since learned that, through crowdfunding, a judicial review of the decision has been mounted. I understand that the fact that a JR is in process does not prevent me from speaking on the subject.
For years, people have been enjoying outdoor activities on our national parks. In particular, Dartmoor has hosted—if that is the right word—the Ten Tors challenge each year, weather permitting. National parks are also the venue for thousands of young people embarking on their Duke of Edinburgh’s award. This is especially so at the bronze stage, when secondary children go out in groups to orienteer their way round the moors and experience at first hand the importance of working together as a team, witnessing the challenge and pleasure of wide-open spaces, often for the first time. The expedition is often the best part of the DoE award scheme for the young people. Young people involved also learn what nature is, how it behaves and how we interact with it. Hopefully, they learn that nature and the environment have not only to be appreciated but nurtured and looked after. This is something of a rite of passage for many young people, who may not otherwise have this kind of experience.
While national parks are a haven for plants and wildlife, they are also a tremendous tourist attraction, and some tourists bring their own challenges. Thoughtlessness has caused devastating wildfires on many of our heathlands and national parks. The litter left behind over a particularly sunny bank holiday weekend can be a real problem to clear up. However, there are measures that can be taken to raise awareness with the public of the dangers of barbecues, in particular, alongside notices encouraging visitors to take their waste home. That should be at the same time as providing sufficient bins for them to put their rubbish in—unlike in one of the country parks in my previous district council area, when, after one very hectic weekend, the rangers decided to remove the bins altogether. Not surprisingly, the result was even more widespread rubbish to clear up after the next sunny weekend.
Yes, there will be a lot of rubbish to clear up after a large influx of tourists, but this could be an opportunity for the community to come together to help clear it up. We were encouraged after the Coronation to take part to help out, and this included many communities going on mass litter picks. There are many ways both to alert tourists to ensure that their visit does not adversely impact others and make sure they leave the environment they have enjoyed in the same state they found it. Banning a section of them through preventing wild camping is neither helpful nor in line with the Government’s wish to see more people enjoying open spaces. I tabled the amendment in such a way as to ensure the action taken on Dartmoor does not spread to other national parks. Surely the motto should be “Use and respect”, not “Go home, we don’t want you”, which is the message being given out by some in Devon.
Returning to Amendment 387, the ethos of the amendment is straightforward. The national parks across the country, the Broads and AONBs should contribute to the country’s biodiversity targets. They are protected landscapes, and the amendments implement the key recommendations from the Glover review, which has so far not been given the prominence it deserves. I am particularly keen to see proposed new subsection (1)(e), in Amendment 387, implemented. This fits in with my comments on my Amendment 475.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the noble Lord, Lord Randall of Uxbridge, very much for his introduction to his amendment. It thoroughly covered the issues and concerns of everybody in this Chamber. We offer our full support to what he is trying to achieve. I also have an amendment around national parks and areas of outstanding natural beauty. The noble Baroness, Lady Willis, made an excellent speech. As she said, at the COP 15 negotiations in December the Government agreed to the global biodiversity framework, to effectively protect 30% of land and sea by 2030—the 30 by 30 commitment. Protected landscapes are an essential part of meeting this target. As we have heard, our outdated legislation around this and the management that flows from that legislative underpinning means that so many sites, whether in AONBs or national parks, cannot currently be considered as effectively managed for nature. The Government have accepted this in their response to the Glover landscapes review, which has been referred to by a number of noble Lords. Like the noble Lord, Lord Blencathra, I live in the Lake District. The noble Baroness, Lady Willis, made me think about biodiversity and the impact on nature that is local to me. She talked about river pollution, and we have a big issue with pollution in the lakes, which has come to the fore in recent times.
I would also like to talk about Forestry England, mentioned by the noble Baroness, Lady Willis. I recently asked the Minister whether any impact assessments had been done of the effect on wildlife when swathes of the forest are cut down because of the disease that we have in the trees. If I remember rightly, his answer was that this does not happen. The number of trees being cut down in the national park near me, particularly because of larch disease, is horrifying. There are huge areas where there is nothing left at all, acres and acres. We asked locally what happens to the red squirrels and were told, “We don’t know”. I really worry about this. We need to think about how we work with, for example, Forestry England, which is making huge changes to the landscape, and how we can manage that impact on biodiversity. I am not expecting the Minister to have an answer to this now, but perhaps we can work on this more.
Therefore, we completely support the amendment tabled by the noble Lord, Lord Randall, to update this outdated legislation. It must happen. We must ensure that national parks and AONBs have a greater contribution to 30 by 30, with increased benefits for people as well as climate, and to cultural heritage. The Glover review is a blueprint for more effective management of protected landscapes. We need to legislate properly to deliver it. Again, the Government have accepted this in their response. At Second Reading in January, a number of noble Lords made the case for implementing the Glover review recommendations through this Bill, in an amendment similar to the one that the noble Lord, Lord Randall, introduced today. A follow-up letter on this to Peers from the noble Baroness, Lady Scott, suggested that the general biodiversity duty created by the Environment Act could deliver it without the need to legislate. However, it has come across clearly today that most of us do not think that this is the case. Any new statutory purposes for nature recovery, climate or access to nature, as the noble Baroness, Lady Bennett of Manor Castle, talked about, must be delivered through legislation. How else do we know that they will be delivered within the timescales that we need? They must be properly embedded so that a general biodiversity duty will require all authorities to give proper consideration of biodiversity at a high level and on a regular basis. The problem is that, without this being embedded in legislation, you do not get a proper sustained focus on targets to deliver those statutory purposes. That is what we need.
The amendments in this group represent an opportunity for the Government to deliver on their own promises more widely, as well as upholding the COP 15 commitments. Also, we need to revitalise our national parks and AONBs for nature. This is an opportunity for us to grab. It did not happen in the Environment Act in a way that satisfied everybody. That is something that we can look at now.
I support a number of other amendments in this group but I want to be brief because it is getting late. I offer our support to Amendment 471, so eloquently introduced by the noble Lord, Lord Hodgson of Astley Abbotts. I walk an awful lot. Living in Cumbria, I walk up the fells a lot, so I use a lot of paths. The rights of way network is one of our nation’s greatest assets. We know the benefits to health and well-being. It helps communities to connect with each other and the wider neighbourhoods. It fosters a sense of connection and pride in communities, which is one of the levelling-up missions. Amendment 471 is quite an important amendment on the levelling-up agenda. I hope that the Minister considers it carefully.
Lord Benyon (Con)
My Lords, I thank my noble friend Lord Randall of Uxbridge for tabling Amendment 387, and my noble friend Lady McIntosh of Pickering for tabling Amendments 504GA and 504GB, and the noble Baroness, Lady Hayman of Ullock, for Amendment 504B.
These amendments would give national parks and areas of outstanding natural beauty additional statutory purposes and update the duties on relevant authorities. I am grateful for the quality of the debate that we have had on this and share noble Lords’ passion for our national parks and the beauty that they provide in landscape terms, as well as the human benefits that they give for our health and well-being. I assure the noble Baroness, Lady Willis, that our commitment to 30 by 30, and the inclusion of national parks and designated landscapes in this, is fundamental. She is right that I have a sign in my office saying “30 by 30” and then quoting NASA:
“Failure is not an option”.
It is about the quality of the environment as well as the line on the map.
My noble friend Lord Lucas has rightly raised, in another amendment, issues around OECMs. There are a variety of ways in which we will achieve this commitment, which is important for us domestically—and internationally, if we are to walk the talk that we have done in international fora on successfully encouraging countries around the world to commit to 30 by 30.
The noble Baroness, Lady Willis, also identified a point about the quality of our interventions as land managers and the types of trees that we plant. She identified perhaps a conflict between tackling carbon and biodiversity. The trees that she described in a pejorative way grow much quicker. They form parts of the furniture and other features in our rooms or whatever. That is keeping that carbon still locked up, and they sequester carbon much more quickly. However, the biodiversity that we want is largely absent from them, whereas the broadleaves, abundant in biodiversity, are slower growing and more susceptible to pests and diseases. We want to ensure that we are getting all that, the carbon benefits as well as the biodiversity benefits, and there is a landscape issue there.
The Government recognise how important our protected landscapes are for improving nature, tackling climate change, supporting rural communities and removing barriers to access. To deliver 30 by 30, we need to strengthen governance and management through the Environment Act 2021. We have strengthened the biodiversity duty on public bodies such as national parks and AONBs, and set ambitious environmental targets. We are also setting specific targets for protected landscapes and issuing guidance for public bodies with responsibilities in those areas.
We are extending land protected for nature through carefully chosen new designations and other habitat-creation projects. We are investing in restoring habitat through the successful Farming in Protected Landscapes programme and the biodiversity challenge fund, while working with partners to attract private investment in protected landscapes.
In opening this debate, my noble friend Lord Randall eloquently set out why he thinks this change is necessary. I hope I can prove that the Government are absolutely committed, because we have taken on-the-ground action to implement the excellent landscape review led by Julian Glover. As I said, our Farming in Protected Landscapes programme supports farmers in protected landscapes to deliver projects for nature, climate, people and place, addressing exactly the points raised by the noble Baroness, Lady Willis. It delivers good environmental and habitat management. Our Access for All programme is also helping local teams to improve accessibility in our protected landscapes. We are also investing in a new protected landscapes partnership to enable national parks, AONBs and—crucially for a subsequent amendment—national trails to collaborate on national priorities more closely.
The Environment Act strengthens the duty on public bodies to have regard to conserving and enhancing biodiversity. In addition, under the National Parks and Access to the Countryside Act 1949 and the Countryside and Rights of Way Act 2000, public bodies already have duties to have regard to the statutory purposes of protected landscapes when exercising their functions. The Government intend to publish guidance to ensure that the existing duties on public bodies are correctly interpreted and applied when exercising their functions in protected landscapes.
I will study my noble friend Lord Blencathra’s words in the record, because he raised some interesting points where a compromise is perhaps achievable.
I hope I have said enough to convince my noble friend Lord Randall of Uxbridge—I know he takes a lot of convincing—to move on these issues that he feels so strongly and speaks so eloquently about. I hope I have persuaded him to withdraw his amendment.
Amendment 471 repeals the 2026 cut-off date for recording historic rights of way. I draw noble Lords’ attention to our commitments on public access in our environmental improvement plan, our desire for everyone to be within at least 15 minutes of green open space, our commitments to complete the England Coast Path and to enhance national trails, and what we are doing on social prescribing. We are using the benefits of nature and access to it to divert people away from the NHS, with new access provisions through a variety of other measures, as well.
It is important to give users, landowners and local authorities certainty about recording unregistered rights of way. Regulations will provide for certain unrecorded historic rights of way to be excepted from extinguishment, such as where they are currently in use or applications to register them remain undetermined. The Government therefore intend to commence the cut-off date provisions, in line with the original intention of the Countryside and Rights of Way Act 2000.
However, in answer to my noble friend Lord Hodgson, who spoke with great passion on this issue, given the delays caused by Covid and the impact it had on a great many areas of the public realm, but particularly local authorities, the Government will take steps to use existing powers and extend this deadline by five years to 1 January 2031. The Government are committed to delivering rights of way reform, which will make processes to add historic rights of way to the definitive map faster, fairer, cheaper and less bureaucratic. Our reforms will also give landowners a new right to apply to have certain routes diverted or extinguished. The regulations needed to bring these into effect will be introduced as soon as is reasonably practicable.
The Government are keen to promote responsible access, protect nature and support people who live and work in the countryside. We also recognise the importance of providing access to the outdoors for people’s health and well-being, and we are working to ensure this and that we are achieving that balance in all that we do. We will continue working with landowners and user groups to promote responsible access, so that we achieve our 25-year environment plan commitment to make it easier for more people, from every background, to connect with nature.
Lord Hodgson of Astley Abbotts (Con)
I am grateful to my noble friend for the news of a five-year extension. Could his department try to explain to local authorities the importance of giving some priority to registrations? As the noble Baroness, Lady Scott of Needham Market, said, they inevitably tend to get pushed down the hierarchy. We need to find as many ways as possible to bring them up to get this finished. However, I understand that there is a balance to be struck, and the Minister is fair to point that out.
Lord Benyon (Con)
I thank my noble friend. He and the noble Baroness made very important points, but this is a question of resourcing and of prioritisation in local authorities. Of course, some local authorities are inundated and others are less so. It is about supporting them to register these rights of way. I will work with him and all interested noble Lords to make sure that we assess how this is going against the new timescale.
Amendment 475 would have the effect of permitting the right to wild camp on open access land. The Government understand concerns about the ability to wild camp in Dartmoor National Park, as raised by the noble Baroness. As a result of the local court judgment, this has come into much clearer view for the wider public. Private Members’ Bills in the other place also seek to make similar legislative amendments to those proposed here.
For the record, it is worth saying that Dartmoor has never banned wild camping: there was just never a right to it. It is a question of which end of the telescope you look at this issue from. There was what I thought was a very fair report on “Countryfile” a few weeks ago, which gave the perspective of both those who want that access as a right and those who very often end up clearing up the mess from the small proportion of those who act irresponsibly and damage our natural environment. The amendment would have negative impacts, including potential legal conflict and complexity surrounding the rights of private landowners, concerns about health and safety and the liability of landowners, and the risk of damage to the natural and historic environment.
Amendment 480 requires the Government to review recreational access to land and open access land. The Government are already required by law to complete a review of open access land under the Countryside and Rights of Way Act 2000, and the next review is due by 2024-25. We will consult on extending the rights to open access land after having completed the review of our existing maps of open access land; this point was raised by the noble Baroness, Lady Bennett. I understand the point that she raised, and I have been active in providing access to land close to where a lot of people live. I understand the tensions and problems. Much can be done by good joint working between land managers and the people who wish to use it. I am very happy to continue that debate.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for giving way. I have a point of clarification. The term “recreational access to land” may have been interpreted as meaning open access land. This amendment is meant to mean all land, not just open access land, and I think that the way it is written shows that.
Lord Benyon (Con)
I understand the campaigning point that the noble Baroness makes. That is perhaps for another occasion in this House; I am very happy to have that debate. I want to see more access but, over the next six years, the recovery of species in this country has to be our priority, as there has been a catastrophic decline. We have to work with people to give them more access where it is appropriate, but we also have to protect our countryside and rare habitats and make sure that hotspots of biodiversity are allowed to thrive, because the benefits from those will spill out right across our country.
Amendment 504GJC, so ably spoken to by my noble friend Lord Lucas, enables local communities, landowners and organisations to contribute directly to the 30 by 30 target through an internationally recognised structure—namely, the other effective area-based conservation measure. We understand the intentions behind this amendment. I provide reassurance that, as I said earlier, the Government are committed to protecting 30% of land for nature by 2030 and to developing the most appropriate approach to increasing and enhancing our protected areas and other land of value to nature.
We are working with partners across the country, including members of the public, the environmental sector, academics, farmers, landowners and the private sector, to deliver against this commitment. The nature recovery Green Paper sought views on our approach to 30 by 30. This included our plans to explore how land that is delivering for biodiversity outside of our designated protected areas can contribute to our 30 by 30 target. Many of the reforms explored in the Green Paper have fed into the Government’s environmental improvement plan, our delivery plan for protecting nature. The noble Lord is absolutely right to raise these points. More areas will be developed for nature as part of our reforms, and I very strongly believe that these should be included in our 30 by 30 calculations.
Government Amendments 467G, 504O, 509E and 515 address the requirement for Natural England to review the maps of open access land in their entirety at set intervals, with the first review currently due to be delivered by 2024-25 and subsequent reviews to be completed every 20 years following this date. These amendments allow Natural England to complete proportionate reviews, focusing on areas that were mapped incorrectly or have changed status, on an ongoing basis. While much open access land is already mapped correctly, some mistakes were made during the initial mapping process, and a first review of these areas is required to establish an accurate baseline. The amendments do not remove the first review deadline completely but move it to 2031 to allow for sufficient preparation of the review.
As I have said, we recognise the importance of enabling access to the countryside. That is why we have established 13 community forests, alongside substantial programmes to create more green open space and significantly expand national trails. We have also created and restored some 360,000 football fields of habitat since 2010. Our response to the Glover recommendations made clear that we will not consider whether CROW rights should be expanded until the review of the CROW maps is complete. Our stakeholders have been clear that reviewing the maps is a necessary first step before any consideration of expanding rights can be made. Once the first review is completed and a baseline established, the amendments will enable us to move to a continuous selective review system. Any changes in land use can be amended on the maps in good time rather than needing to wait up to 20 years for further review.
Amendment 467G inserts a new provision into the Countryside and Rights of Way Act 2000 regarding when Natural England must carry out reviews following the issuing of open access maps, and the matters that such a review must cover. The amendment also makes provision for regulations to set out the procedure on a review and makes consequential amendments.
I hope noble Lords will support these important amendments. A substantial amount of planning is required if we are to ensure that the reviewed maps are fit for purpose, so that we can then switch to a system of limited continuous review rather than the periodic reviews required at present. Amendment 467H would reduce, by three years, the time we have to make sure that the first review of maps is completed to the standard needed. The Government have tabled amendments which remove the scope for regulations to push back the deadline for the review, so I offer the noble Baroness assurance that this date will not move again.
Amendment 467I would insert a legal requirement to make regulations to enable subsequent reviews of the open access maps. Once the Bill has achieved Royal Assent, the Government intend to make regulations to enable a continuous review following the completion of the first review, which I hope will reassure the noble Baroness that the ability to do this will not be lost.
Amendment 467J would take the opposite approach of the government amendment by returning to the existing power to invoke the original appeals regime so that it applies to the review process. The Government feel it is important that we have the flexibility to fit the details of the appeal regime to the very different circumstances of the review, and therefore do not feel able to support this amendment.
Lord Randall of Uxbridge (Con)
My Lords, we have had a very interesting debate. I thank all those who have supported my amendment.
Because of the lateness of the hour I will not go into details, except to thank the noble Baroness, Lady Willis, for her speech, which was not just passionate but full of expertise, which shows the strength of this Chamber. I also thank my noble friend Lord Blencathra, not just for his almost complete support but for two ideas. One is tweaking. I am always up for tweaking and I hope my noble friend the Minister is too. My noble friend’s other suggestion involved a bottle of Highland Park. Perhaps we could get together and tweak this amendment with the Minister, and perhaps even his boss, so that we can go forward. Then, if the Government do not come forward with the appropriate amendment on Report, I assure my noble friend that I will return to it. With that, I beg leave to withdraw my amendment.
“(c) In upgrading each nitrogen significant plant and each phosphorus significant plant—(i) publish a compliance and investment plan for each plant before upgrades are commenced, setting out how upgrades will be delivered,(ii) within each compliance and investment plan set out how upgrades will, wherever feasible and possible, use catchment-based approaches and nature-based solutions to secure a reduction in nutrient discharges equivalent to those required to meet that limit, and(iii) report annually to the Water Services Regulation Authority, the Environment Agency and the local planning authority on progress against the agreed compliance and investment plan.”“(1A) The Water Services Regulation Authority and the Environment Agency must advise the local planning authority if compliance and investment plan monitoring suggests that the pollution standard will not be met; and a local planning authority may disapply its obligations under Schedule 12 to this Act on receipt of such advice.”Member’s explanatory statement
This amendment will require sewage undertakers to clearly set out plans for and provide annual reports on progress towards upgrading plants in sensitive catchment areas, including plans to prioritise use of catchment-based approaches and nature-based solutions to reduce nutrient pollution, thereby unlocking wider environmental benefits.
Baroness Willis of Summertown (CB)
My Lords, Amendment 390 in my name, supported by the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, seeks to address a missed environmental opportunity in Clause 153, which takes very welcome steps to address nutrient pollution. The Government should be congratulated on this, as this nutrient pollution, which comes from houses and from farming, is devastating our freshwater habitats.
The statutory requirement in the Bill is to meet this nutrient removal through sewage disposal works and plants. Frustratingly, the clause specifies that this upgrade should take place only in these areas and has missed an opportunity to bring in nature-based solutions. The first reason this is a problem is that concrete-based solutions carry a really hefty price tag, as Wessex Water told me the other day, but they carry an even heavier climate cost. They have a very large carbon footprint. So what we have ended up with in the Bill is an environmental problem—nutrient pollution in our rivers—being addressed in a way that will create another environmental problem: significant carbon emissions.
There is an environmentally friendly alternative. This amendment suggests that water companies should also be given the option to reduce the level of nutrient pollution by using nature-based solutions, such as a buffer strip of forestry or wetland plants along the edges of a river. They all sound very nice and are often seen as a soft alternative. That is the real problem. There is now a really large scientific evidence base to demonstrate that such nature-based approaches are highly effective at reducing nutrient loads in rivers.
Baroness Hayman of Ullock (Lab)
My Lords, apart from the Government, I have the bulk of the other amendments in this group so I thought I would go through them now. I thank the noble Baroness, Lady Willis; she is very knowledgeable and it is interesting to hear what she has to say. She brings an extra dimension to our debates on this issue, and I hope the Minister will agree with that.
Part 7 provides an opportunity to address nutrient pollution, particularly from development. There is a duty on water companies to upgrade their sewage disposal works; that is welcome, but some of our amendments are to do with the wording, because we are a bit concerned that the wording about how water companies are to deliver the required upgrades is unnecessarily prescriptive. For example, Amendments 391 and 393 look at how the Government have come to the wording of the exemptions. Amendment 391 is to new Section 96D in Clause 153, which says:
“A plant is exempt … if … it has a capacity of less than a population equivalent of 2000”,
while further down it says,
“the plant has a capacity of less than a population equivalent of 250”.
The amendments probe where those figures have come from and why they are there.
My Amendment 400 probes whether broken sewage monitoring stations are contributing to sewage discharge. We are aware that Ofwat has recently announced that water and sewerage companies will face increased penalties from 2025 for using faulty or broken equipment to measure pollution from storm overflow pipes. Obviously we welcome that announcement, but the Government and the regulators need to enforce existing legislation. My amendment would place a duty on the Secretary of State to monitor the situation so we would ensure that what is legislated for actually happens. The narrow focus on sewage disposal works locations also means that the upgrades will be delivered onsite, usually through the traditional engineering methodology, which the noble Baroness, Lady Willis, talked about—using concrete, steel and chemicals has a high carbon cost.
My Amendment 401 probes the implementation of the environmental action plan. It asks the Minister for an explanation of how that is related to Part 7 and how it all ties together.
My Amendment 402 probes the potential for rebuilding sewage works with new concrete and steel rather than creating woodlands, reed beds and wetlands. The noble Baroness went into a lot of detailed explanation about why we need both options. A prescriptive site-specific approach closes down that environmentally beneficial alternative for upgrades. Habitat restoration can be done from wetlands and riparian woodlands and you can enhance farmland through hedges—the Minister knows all this. It would be good if that were also included as an option.
We know there have been pioneering partnerships between water companies and nature organisations, including locally where I am in Cumbria, and they have demonstrated how effective habitat restoration can reduce nutrient pollution levels and achieve nutrient neutrality. Again, why not use those pioneering partnerships to drive forward best practice? Other countries have done so, such as Belgium, so there is proper evidence and information as to why that is a good way forward.
I shall be brief because we still have quite a bit to get through. I finish by reiterating our strong support for everything that the noble Baroness, Lady Willis, has said and her amendment, and I urge the Minister to consider accepting it. We also support the amendment tabled by the noble Lord, Lord Stunell.
Lord Stunell (LD)
My Lords, Amendment 393ZA is in my name and I thank the noble Baroness, Lady Hayman of Ullock, for her support in advance. I want to offer my support for all that the noble Baroness, Lady Willis, said. It was extremely knowledgeable and powerful, and I hope very much that the Minister will be able to give her a positive response.
My amendment responds to the specific ambiguities in the text of the clause in front of us. Clause 153 amends the Water Industry Act 1991, and in its new Section 96D(5) it provides that:
“The Secretary of State may by regulations specify”
which sewage treatment plants are exempt from control of nutrient discharge. That subsection (5) follows a couple of preceding subsections which detail, as the noble Baroness, Lady Hayman of Ullock, pointed out, that plants of a particular size are exempt in any case. As I understood it from reading the legislation, very small-scale plants might be exempted. On top of that, we have subsection (5), which says that the Secretary of State may by regulations specify any sewage treatment plant that they decide is exempt. It is exactly the same area of concern that I expressed previously: it would appear that the Secretary of State is being given a free card to decide on exemptions, additional to those written into the earlier part of the new section.
A less scrupulous water company—we all know that they have suddenly become extremely scrupulous, which is very good to hear; of course, I absolutely take what they are saying in good faith—might think it worth while pursuing an exemption for a plant to avoid the costs. The noble Baroness, Lady Willis, has alluded to the substantial costs for them if they are required to comply. That is reflected pretty fully in the concept in the same clause: that if an exemption is ever withdrawn—in other words, if you thought that you had an exempt plant but the Secretary of State decides that the exemption is withdrawn—there is a seven-year period in which to become compliant. Once the exemption is withdrawn, you have seven years to get back into compliance. That indicates the cost and difficulty somebody would face if they found themselves with a plant which they had to make compliant.
The point I am trying to make, not very articulately, is that there is a real benefit to an operator in avoiding having to put in the necessary measures which this clause prescribes. There will be voices raised and pressures brought to bear on the Secretary of State to be very relaxed, and to operate subsection (5) in addition to the statutory exemptions in the preceding subsections. One could imagine that the greatest pressure would come from somebody operating a sewage plant which had had persistent breaches in standards that they regarded as being too onerous or expensive to comply with. They would make some special pleading to the Secretary of State that they should be exempted. That is exactly the situation that ought to be strongly resisted, and which this legislation should prevent happening.
Baroness Parminter (LD)
My Lords, I support the noble Baroness, Lady Willis, in her Amendment 390, to which I have added my name. It is a really important amendment as we struggle to meet the Government’s environmental target and our need to build more homes and develop our land. We have to do that in a way that understands there are fundamental environmental problems we need to address, particularly nutrient pollution.
It is clear that we need a statutory underpinning for nature-based solutions because, without that, they are not going to happen. We have evidence of that. You only have to look through previous price reviews, in which Ofwat turned down recommendations from water companies for nature-based solutions because, on a crude cost-benefit analysis, putting in a grey concrete storm tank was a damn sight cheaper than wetlands and various other proposals. If my memory serves me right, Ofwat turned down some very detailed and thoughtful proposals from Anglian Water because of the cost. Unless there is statutory underpinning, Ofwat will just carry on with its usual economic model.
This amendment is an important way of ensuring we get that win-win of nature-based solutions as we seek to address our nutrient pollution problems. It is an elegant way to move forward on the Dasgupta review, which talked about finding new ways to build nature into our economic model. Giving this a statutory underpinning would, as I have just made clear, give Ofwat the confidence to build into its economic models support for nature-based solutions. We know these are going to be fundamental if we are going to get to our 30 by 30 target.
The only thing I want to say, because it is late and so much has been brilliantly said by the noble Baroness, Lady Willis, is that you would expect us to say this. We are the usual green environmentalists. But I hope the Minister hears that we are also saying that we understand why this is important. We need development, and there is stalemate in many housing developments because the nutrient pollution issues cannot be solved. We are trying to be constructive in resolving that problem. We are not just saying this with our usual green hats on. We realise that this is a tricky issue which needs resolving.
It is not just us in the environmental groups, such as Wildlife and Countryside Link. The House of Lords Science and Technology Committee did an excellent report on nature-based solutions recently. Again, this underpins the support for this amendment. The Government’s own environmental improvement plan talks about the benefits of nature-based solutions. If you are going to deliver on your own words, then you should be supporting this.
For me, the most important and powerful thing is that the water companies support this amendment. In addition to the comments made individually to the noble Baroness, Lady Willis, Water UK put out a release saying that the water companies want this amendment. It would be wonderful to be able to say that this amendment has been supported on a day when the water companies have said, “Mea culpa”, said sorry for the appalling way that they have handled our sewage problems, and promised that they will put £10 billion-worth of new investment into this area. This would ensure that we get the win-win, both to overcome some of our problems with building the homes we need and to ensure that we get the benefits we need for our hard-pressed nature.
Lord Benyon (Con)
I am grateful to noble Lords for their contributions. I will come to the various points but, first, I say that I agreed with nearly everything that the noble Baroness, Lady Parminter, said, particularly the quotation from Dasgupta. But her criticism of Ofwat is slightly out of date: I had those arguments with it a decade ago. It liked a bit of concrete and steel then because it could measure water going into it and the quality going out, and it did not trust nature-based solutions because it could not get that degree of measurement of asset value. There has been a sea-change in how we do that, but I agree with her in every other respect.
On this group on nutrient pollution standards, I begin my remarks with Amendment 390. I agree with the noble Baroness, Lady Willis of Summertown, and others that we should ensure that water companies deliver this new statutory duty in a timely way. Throughout the delivery of the Water Industry National Environment Programme, the Environment Agency regularly liaises with water companies to ensure progress and to address risks to delivery. Under Section 202 of the Water Industry Act, the Government have the power to request that water companies provide information regarding the delivery of improvements to wastewater infrastructure, and we intend to use these powers if necessary.
Should it become evident that a delay in upgrading a particular wastewater treatment works is unavoidable, the legislation makes provision for the Secretary of State to disapply the requirement placed on local planning authorities to assume that the upgrade will be delivered by 1 April 2030 for the purposes of a habitats regulations assessment. The Secretary of State must notify local planning authorities accordingly so that they can factor this into their planning discussions.
I agree with the noble Baroness that we should ensure that water companies are delivering against this duty in a way that maximises benefits for the environment, and ensure that nature-based solutions are a vital part of our sewage treatment infrastructure. The Government want to see water companies making use of these solutions as part of the treatment processes that they apply. In the strategic policy statement for Ofwat, we set out that water companies should
“increase … the use of nature-based solutions where appropriate”.
The new statutory duty has been designed to ensure that water companies can use nature-based solutions as part of the wastewater treatment process—for example, water companies may use integrated wetlands to remove nutrients from wastewater. The legislation also allows water companies to use nature-based solutions as part of this process. I am repeating myself, so I will move on, as the hour is late.
In the most recent strategic policy statement for Ofwat, the Government set the clear expectation that it should continue in this form. Therefore, I assure the Committee that sufficient provisions are already in place to ensure that nature-based solutions are taken forward where appropriate.
I turn to Amendment 391 in the name of the noble Baroness, Lady Hayman of Ullock. Upgrading wastewater treatment plants smaller than a plant capacity of 2,000 population equivalent would require significant investment in new infrastructure and deliver minimal environmental benefit, and it is therefore unlikely to represent value for money. However, we have provided a power for the Secretary of State to lower the plant capacity in individual catchments so that, where appropriate, we can require upgrades at smaller treatment works too.
Although I welcome Amendment 392 in the name of the noble Baroness, Lady Hayman of Ullock, it is unnecessary because the Secretary of State will of course consider all relevant information and advice before making any exemptions from achieving the nutrient pollution standard. In addition, if a wastewater treatment plant is exempt from this statutory duty, the Environment Agency will still make use of environmental permits to set limits on the quality of wastewater being discharged, thereby ensuring that the water environment is protected.
In relation to Amendment 393, I reassure the Committee that wastewater treatment plants with a capacity of less than 250 population equivalent can already be designated as not exempt where appropriate. If the evidence shows that it is necessary to put enhanced treatment in place at a wastewater treatment plant with a capacity of less than 250 population equivalent, the legislation allows for the Secretary of State to do so within a set timeframe.
I agree with the noble Lord, Lord Stunell, that we should ensure that nutrient pollution standards for wastewater are protected. However, as already made clear, wastewater treatment works that are exempt will still be subject to all the other existing standards set by the Environment Agency on a site-specific basis, but I am happy to continue discussions on this as the Bill progresses.
Amendment 400 raises the issue of accurate monitoring and reporting. I agree that this is critical. Under this Government, we have gone from just 7% of storm overflows being fitted with event duration monitors in 2010 to over 90% today, and by the end of this year that will rise to 100%. The Environment Agency already regulates many water quality monitoring stations through permits to ensure that they operate to established regulatory standards. We aim to bring forward regulations to implement a new duty on water companies to report data on sewage discharges from storm overflows in near real time. In those same regulations, we will implement a duty to monitor the water quality impacts of those discharges. That will make the UK world leaders in understanding the impact of sewage discharges on the receiving environment. I therefore reassure the Committee that this amendment is not necessary, as the Government are already taking steps to ensure the accurate and timely reporting of monitoring data from wastewater treatment works. The Committee should expect further announcements on this soon.
Considering Amendment 401 in the name of the noble Baroness, Lady Hayman of Ullock, I will assume that she is referring in it to the environmental improvement plan. The plan includes the steps that we are taking to meet the legally binding long-term target to reduce phosphorus loadings from treated wastewater to the water environment. Every five years, the Government must review the environmental improvement plan and update it as necessary to ensure that it contains any further policies needed to achieve long-term and interim targets. It is therefore important that we retain flexibility to update the actions in the plan rather than setting them on a statutory footing, so that we can ensure that the actions reflect the most appropriate path to achieving our policy. It will be for this and the other place to hold Ministers to account on this in future years.
Government Amendments 393A to 393J will improve the enforceability of these provisions by making it clear that the Environment Agency needs to treat excess nutrient pollution discharge which results from the failure to deliver upgrades on time as environmental damage. The sewerage undertaker would then be liable to remediate the excess nutrient pollution determined as having been discharged. For the reasons set out, which I hope provide sufficient reassurance, I ask the noble Baroness, Lady Willis, to withdraw Amendment 390, and noble Lords not to move the other amendments in their names and to support the government amendments.
Baroness Willis of Summertown (CB)
My Lords, I thank all noble Lords and Baronesses who have participated in the debate, particularly the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Stunell, for their excellent additional points. I thank the noble Baroness, Lady Parminter, for her support of my amendment.
I urge the Minister to consider this matter further. I give him one reason why: if we have so much legislation out there already, why is it not working? If you look at recent government funding for wastewater treatment plants and schemes—I checked it earlier today—not a single one that has been funded is a nature-based solution; they are all concrete. That suggests to me that people are not taking this seriously; the water companies are certainly not looking at nature-based solutions.
I would like to discuss this further with the Minister’s department, if possible. I appreciate his answers and know that this matter is not straightforward, but we need to put legislation in place that means that nature-based solutions are on the same footing as concrete solutions—they are not right now. With that, I beg leave to withdraw my amendment.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 190, line 36.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment would change what is treated as environmental damage for the purposes of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 where a plant is in breach of a nutrient pollution standard to the excess nutrient pollution discharged (instead of the damage caused to a site).
“(2A) In paragraph (2)—“excess nutrient pollution” , in relation to a nutrient significant plant and a related nutrient pollution standard, means the amount by which the total nutrient pollution discharged in treated effluent by the plant during the period—(a) beginning with the upgrade date, and(b) ending with the day the plant first meets the related nutrient pollution standard,exceeds the total nutrient pollution that it would have discharged in treated effluent during that period had it met the related nutrient pollution standard on and after the upgrade date;“total nutrient pollution” means—(a) in relation to the nitrogen nutrient pollution standard, total nitrogen, and(b) in relation to the phosphorus nutrient pollution standard, total phosphorus.(2B) It is for the Environment Agency to determine the excess nutrient pollution discharged by a plant and in doing so the Environment Agency may have regard to—(a) the concentration of total nitrogen or concentration of total phosphorus determined for the purposes of section 96F of the Water Industry Act 1991 (see in particular subsection (5) of that section), and(b) the volume of treated effluent discharged by the plant, as determined by the Environment Agency.”Member's explanatory statement
This amendment would define “excess nutrient pollution” for the purposes of the provision that would be inserted by the Minister’s amendment at page 190, line 36.
Member's explanatory statement
This amendment would leave out paragraphs (3) and (4) of inserted regulation 9A of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 which would not be needed as a result of the Minister’s amendment at page 190, line 36.
““nitrogen nutrient pollution standard”;”Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 191, line 6.
““phosphorus nutrient pollution standard”;”Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 191, line 6.
““treated effluent”;”Member's explanatory statement
This amendment would apply the definition of “treated effluent” from section 96J of the Water Industry Act 1991 for the purposes of the definitions that would be inserted by the Minister’s amendment at page 191, line 6.
Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 190, line 36.
Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 190, line 36.
Member's explanatory statement
This amendment is consequential on the Minister’s amendment at page 190, line 36.
“(c) the Secretary of State has published a strategy for ensuring the development corporation is accountable to local residents”Member's explanatory statement
This is to probe the accountability of development corporations.
Baroness Taylor of Stevenage (Lab)
My Lords, although it is not a matter for the register of interests, I declare a particular interest in this group of amendments in that I grew up in an area developed and managed for many years by a development corporation. At their best, they provide focus, finance and pace for new development. If we are serious about tackling the severe housing crisis, which we have discussed so many times in your Lordships’ House, and ensuring that we create the conditions and environment for the new forms of employment we need—I am reminded of recent discussions in Question Time about the need to develop new battery capacity at speed—we should welcome the move to enable this way of tackling new developments at scale.
However, we must ensure that, as we do so, we learn the lessons of the past, including the not-so-distant past: with all the safeguards we need to ensure development at pace does not ride roughshod over proper and appropriate process and accountability. We also need to ensure that there is appropriate membership of, and links with, those who are democratically elected at local level, so that the public can be reassured they have a recourse via the democratic route.
May I ask the noble Earl the Minister a few questions before I begin consideration of our amendments about the way that development corporations are framed in the Bill? First, the Bill refers to one or more local authorities having what is called “oversight” of the development corporation. Of course, as advocates of localism we welcome this, but can the Minister be more specific about whether that means that the local authority will be the accountable body, which is a different term? This important distinction would help us to understand whether it is the Government’s intention that development corporations are autonomous in terms of finance or whether financial decision-making and probity will still require a council process. If it is the former, I am not convinced that there is sufficient detail in the Bill about how probity will be achieved. Bearing in mind the very considerable sums of public money that will potentially flow through development corporations, it is absolutely crucial that we are all clear on this issue.
Also in relation to finance, the Bill creates substantial new powers of borrowing for development corporations. Will they be subject to the same prudential borrowing regime as local authorities? If it were not so late, I could talk more about public accounts committees and local public accounts committees and how that might be a solution, but I will save that for another day.
Secondly, regarding how development corporations are to operate in terms of planning powers, will they be responsible only for the planning of new development within the designated area? To explain further: should the designated area contain existing development, does the council remain responsible for day-to-day matters of planning, such as infill development, extensions, tree preservation orders and so on, or is the whole gamut of planning within the application area the responsibility of the development corporation once the designation has been made? Can the Minister also clarify whether, in two-tier areas, the district council takes on the planning powers of both tiers—for example, the minerals, waste and flooding powers of the county as well as district planning powers? Would the county council keep the minerals and flooding powers without housing powers, or would all those powers transfer to the development corporation?
Lastly, in terms of membership and chairmanship of a development corporation, it is not clear to me whether this is left entirely to local discretion or whether it will require government departmental sign-off. Will it be a requirement that each local authority that comes within the designated area of the development corporation will be entitled to representation on that development corporation? Can the Minister give any further clarity on that? I am happy to have a response in writing at a later date.
Amendment 403 attempts to establish a principle that the development corporation should be accountable to local residents. When councils undertake development, whatever the scale, the public have all the protections that have been built into the planning system through the route of democratic accountability. Our amendment probes how that will be replicated in relation to development corporations. I note that the new Amendment 403A, in the names of the noble Baroness, Lady Pinnock, and the noble Lord, Lord Shipley, makes a similar point in relation to ensuring that the public get value for money.
In view of discussions in your Lordships’ House just yesterday relating to the very significant development taking place under the mayoral development corporation in Teesside, I think it is particularly important that the accountability route for the public in relation to both the development itself and the public funds invested is much clearer than it is at present. We strongly believe that development undertaken by a development corporation should have to be in accordance with local plans, subject to master planning, where it is implementing development at scale, and subject to the same reassurance of independent examination as is required of councils.
Our Amendment 404 would give the public the opportunity to make representation at an independent inquiry.
Our continuing concern about this Government’s failure to deliver any scale of housebuilding that would help to tackle our housing emergency has prompted our Amendment 406, which probes the Government’s intentions in relation to a programme for new towns. We have had many discussions in Committee about the role of members of local councils in the development of their areas. Too often in the past, these vital community bodies—parish, town and other community councils—are left out of the loop. Their role at the heart of their communities is key to ensuring that there is a voice for local people as developments move forward.
Our Amendments 407 and 408 will introduce a requirement for local councils to be represented on locally led urban development corporations. In my questions to the Minister, I outlined our concerns over how the finances of a development corporation are to be publicly accountable. Our Amendment 409 reflects that concern and asks that the Secretary of State is much clearer than the Bill currently is about how the finances of development corporations are to be transparent, how they will be monitored and how they are to be accountable to the public. I beg to move.
Baroness Pinnock (LD)
My Lords, this short group is actually very important. Clause 156 in Part 8 is an introduction by the Government of a new type of development corporation: locally led. Development corporations have been around in various guises for a long time—new towns, Canary Wharf and the Olympic Park are examples—with very variable degrees of success in achieving their stated aims. Development corporations are the vehicle for public-private partnerships, often to develop former industrial sites. In that sense, the principle is supported by these Benches. However, the noble Baroness, Lady Taylor of Stevenage, is quite right to challenge some aspects of the planned changes. We support her Amendments 404 and 405, which would ensure that the public have a right for their voice to be heard. This is, after all, the levelling-up Bill, where public engagement, involvement and participation are emphasised.
It is absolutely right—fundamental, in my view—that locally elected representatives are at the heart of development corporations, for the very reason that they are the route by which members of the public can take their concerns, raise complaints, get answers, challenge decisions that are being made and hold the board to account for the public money that is being spent. Unfortunately, that is not the case with some existing development corporations. Wherever public funding is involved, as it is in development corporations, there has to be public and transparent decision-making and then public accountability for those decisions. Hence Amendment 403A in my name and that of my noble friend Lord Shipley.
Unfortunately, one development corporation, the Teesside Development Corporation mentioned by the noble Baroness, Lady Taylor of Stevenage, is making headlines of the wrong sort, in both the Yorkshire Post and the Financial Times, for the apparent failure of transparency and accountability. Teesside is a mayoral development corporation—I asked this question yesterday in the Chamber, to which the noble Baroness, Lady Scott, responded—where it seems that the mayor has the sole right to appoint the board membership of the development corporation. I think that was the response I got, but maybe that is not the case, in which case I hope that is put right. This practice is totally contrary to good governance, where openness and inclusivity have to be the hallmark. The extension of development corporations to include locally led ones is an opportunity for the Government to review best practice in governance, transparency and accountability and make the appropriate changes so that all development corporations meet the highest standards of open and transparent governance.
Lord Stunell (LD)
My Lords, I support what the noble Baroness, Lady Taylor of Stevenage, said, as well as what my noble friend Lady Pinnock had to say about this.
I need to start by saying that I worked in the architects’ department of a new town for 13 years and lived in that new town during its raw development stage. Noble Lords will not be surprised to hear me say that I believe that the development corporation model has a proven track record, usually of building communities with all the essential infrastructure in a joined-up way. The Government are right to see the development corporation model as one means of accelerating necessary development, and I welcome the presence of these clauses in the Bill.
However, I will just briefly reflect on my experience. During the 1960s and 1970s, the new towns were very top-down in conception. The New Town Act made the development corporation I worked with simultaneously the client, the designer, the planning authority and the funding channel for the delivery of the projects I worked on, which was a very cosy situation for those of us working on the projects but not so good if you lived next door or sometimes literally underneath where we were developing. The later generation of urban development corporations mostly paid better lip service to local democratic institutions than that.
However, there are deficiencies, and my noble friend Lady Pinnock has put her finger on one of them. It is good that the relevant clauses inform a model whereby development corporations spring from local government initiatives and are not to be imposed by somebody with a map sitting in Whitehall. That brings me to my first question to the Minister. Clause 156(2) still reserves the power to declare urban development corporations independent of any local proposals—the Secretary of State can in fact sit behind a desk in Whitehall. Do the Government have in mind making any such designations, and if not, why do we have Clause 156(2) in the Bill?
My second question relates to the consultees listed in Clause 156(4), which inserts new provisions. Indeed, the noble Baroness, Lady Taylor of Stevenage, refers to that in her Amendment 407. A very good part of that clause says that local government is to be involved even if it is not the commissioning authority. There is then a less good list of what local government consists of. Very surprisingly, it does not include parish and town councils. They are not listed as statutory consultees, although district and county councils are. There is a parallel provision in the legislation for the urban development corporations to what we might call the green belt ones. In each case, parish councils are left out. In any normal use of language, they qualify as local government, do they not? They also qualify as legislative and statutory as well, so it is a great puzzle to me why they are not there. An important point is that they will probably be the best informed about their areas, and at a detailed level which certainly will be missed by county councils, for instance. I therefore want to hear from the Minister why parish councils are not statutory consultees.
The Minister may say that there is a catch-all here;
“any other person whom the proposing authority considers it appropriate to consult”
is among the consultees. However, that is an option for the consulting authority, not a statutory consultation partner. If you want to rely on that catch-all, why not rely on it for county councils? If it is blindingly obvious that you would always consult a parish council, and therefore you do not need to say it, it must surely be blindingly obvious that you need to consult the county council, so you do not need to say that. If you are mentioning one, why not the other?
Secondly, what led to the omission of town and parish councils? If it was an oversight, will the Minister please correct it on Report or at least tell us that the inevitable statutory instrument will make it unambiguously clear that any town or parish council in or in the vicinity of a proposal should be consulted as a matter of course? I would be very happy to receive an answer by letter, if that makes it easier.
Earl Howe (Con)
My Lords, as the noble Baroness, Lady Taylor, has explained, this group of amendments concerns development corporations. I am grateful for the broadly supportive comments from noble Lords for these provisions.
Amendment 403 probes the issue of local accountability, which was a theme picked up strongly by the noble Baroness, Lady Pinnock, whose amendment I will come to in a moment. One of the key priorities of the Government’s levelling-up agenda is to empower local leaders and communities. Introducing a new, locally led urban development corporation model will support local aspirations for regeneration without the need to establish a body accountable to central government, but which is instead accountable to local authorities. For it is local authorities—local councillors, elected by their local community—who will be the originators of the proposal and oversee the locally led development corporation, ensuring clear democratic accountability.
We completely recognise the importance of community involvement and participation in the creation of locally led development corporations. That is why we have included statutory public consultation arrangements for locally led urban and new town development corporations in the Bill, which proposing authorities must implement before submitting their proposal to the Secretary of State.
We intend also to use regulations to set out further details on the composition of board membership and aims of the oversight authority for locally led urban development corporations, as we did in relation to locally led new town development corporations in 2018. In appointing independent members, we expect the oversight authority to ensure that the board has the relevant skills and experience needed and includes those with an understanding of the local area.
I turn to Amendments 404 and 405. We recognise the importance of ensuring that appropriate scrutiny has taken place, including from the local community, where a proposal is being developed to designate the development area of a new settlement or urban development area and establishing a locally led development corporation. As I have mentioned before, we have included provisions for statutory public consultation where people can have their say on the proposals at the formative stage before it is submitted to the Secretary of State. When the proposal is received by the Secretary of State, they will look very carefully at the robustness of the plans, including at community involvement and views expressed, before making a decision on whether the proposal is expedient in the local interest and making an order to designate the development corporation’s development area.
The noble Baroness, Lady Taylor, asked whether all planning would become the responsibility of the locally led UDC and whether all powers would transfer from the local authority to the locally led urban development corporation. The answer is no—or rather, not necessarily. It is for local authorities to propose and for the Secretary of State to decide, under his discretion, whether and to what extent functions should transfer.
The noble Baroness and the noble Baroness, Lady Pinnock, also asked about the conformity of locally led UDC development with local plans. A development corporation that takes on plan-making or development management functions will be subject to the same rules as a local planning authority. I would be happy to fill out that answer in writing, if I may.
Amendments 404 and 405 are therefore an unnecessary addition to these consultation requirements. They would slow down the designation of development corporation areas. The purpose of designating the area is to determine the area in which the locally led development corporation will operate and deliver a programme of urban regeneration or a new town. There will be further opportunities for the local community to have its say on the planning proposals for the area as proposals for development come forward through the planning system.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful to the noble Earl for giving us a detailed and thorough response, in spite of the late hour. It is much appreciated. As the noble Baroness, Lady Pinnock, said, this is an important clause in the Bill and we want to support it, because I agree with the noble Lord, Lord Stunell, that the way that development corporations work has generally been very effective. It has not worked everywhere, but in most places it has been very effective and has delivered at scale. It has created not just dormitory areas but real, proper communities, with all the infrastructure, which is exactly the model that we want to see for at-scale housebuilding going forward. We really want this to work; it is very important.
The noble Baroness, Lady Pinnock, raised the issue about Teesside, as I did. This is very important. It has made us all quite nervous to see the lack of transparency that there appears to have been in some of the decision-making there. That is making us concerned about this, so I hope that our amendments and the questions we have asked help us to clarify our thinking.
The noble Lord, Lord Stunell, raised the issue, as did I, of parish and town councils. That needs some thought: as the noble Lord rightly said, if we have specific mention of county councils and district councils in the consultation and it is not just assumed that they will take part, that should surely apply to parish and town councils as well. I do not see any reason why not. The Minister indicated that that might come through in a later statutory instrument, but we will be more reassured if the other types of council are included in the Bill.
On my question regarding the accountable body, perhaps the Minister could respond in writing. I have recently set up a town development board that is working on a billion-pound town centre regeneration project; that is not quite the same as a development corporation, but similar. The council has had to be the accountable body: the town development board has a mixture of elected and appointed people, and the decision-making on the finance has to go back to the council every time. I wanted to be sure about the role of this oversight authority. The Minister said that that might be subject to further information, to come at a later stage. Given the vast sums of public money that is likely to go through these bodies, it is important that we understand who will be accountable for that money and how, and who will monitor it and how.
The point the Minister made about these being locally led development corporations is really important. Those of us who experienced them in the 1950s will remember that the approach was very top-down. I know that that is not in anybody’s mind these days, as doing it that way does not work any more. We do not want to go back: it is very important that they are locally led and there is local input all the way through the development of the proposals. It was reassuring and helpful to hear that planning proposals by development corporations will go through the planning system in the same way, so there will be public inquiries, presumably, and publicly held meetings about the plans and proposals.
I heard the Minister say that the Local Government, Planning and Land Act requires financial reporting from development corporations to the Secretary of State, and a report to then be laid before Parliament. I look forward to reading the annual report for Teesside’s mayoral development corporation when it is made public; it will be very interesting to see what it says.
The Minister mentioned the garden communities. I will not step on any corns regarding East Herts District Council, which has just completed a garden village proposal—and where the Conservatives lost 17 seats a couple of weeks ago. In general, the garden communities are a very good thing; they are well-planned communities with the infrastructure needed to support them.
The Minister referred to the Secretary of State approving the governance and deliverability plans before designating a development corporation. Finance should be included as well. I do not know whether that is what he intended, but it is very important.
There are some issues still to be clarified, but we are all generally supportive of locally led development corporations. We may come back to these issues on Report, when we have further information, but for now I beg leave to withdraw the amendment.
Baroness Scott of Bybrook
“(4) Schedule (Conditional confirmation and making of compulsory purchase orders: consequential amendments) contains, and makes provision in connection with, amendments in consequence of this section and paragraph 3 of Schedule 15.”Member’s explanatory statement
This amendment introduces the new Schedule in the Minister’s name before Schedule 15, and omits one of the provisions superseded by that new Schedule.
Baroness Scott of Bybrook
“ScheduleConditional confirmation and making of compulsory purchase orders: consequential amendmentsLand Compensation Act 1973 (c. 26)
1 In section 33D of the Land Compensation Act 1973 (exclusions from entitlement to loss payments), for subsection (6) substitute—““(6) The relevant time is the time at which any of the following occurs in respect of the compulsory purchase order relating to the person’s interest in the land—(a) the order is confirmed, other than conditionally, under section 13 or 13A of the Acquisition of Land Act 1981;(b) the order is made, other than conditionally, under paragraph 4 or 4A of Schedule 1 to that Act;“(c) a decision is made under section 13BA(2)(a) of the Acquisition of Land Act 1981 (decision that conditions subject to which order was confirmed have been met);(d) a decision is made under paragraph 4AA(2)(a) of Schedule 1 to that Act (decision that conditions subject to which order was made have been met).”Compulsory Purchase (Vesting Declarations) Act 1981 (c. 66)
“2 In section 5(2) of the Compulsory Purchase (Vesting Declarations) Act 1981 (vesting declaration not to be executed before purchase order operative), for “26(1)” substitute “26”.Acquisition of Land Act 1981 (c. 67)
3 (1) The Acquisition of Land Act 1981 is amended as follows.(2) In section 7—(a) in subsection (3) (regulations subject to negative procedure)—(i) after “13A” insert “or 13BA”;(ii) after “paragraph 4A” insert “or 4AA”;(b) after subsection (3) insert—““(4) So far as anything is required or authorised to be prescribed as mentioned in subsection (2) in relation to orders that fall to be made or confirmed by the Welsh Ministers— “(a) the reference in that subsection to the Secretary of State is to be read as a reference to the Welsh Ministers, and“(b) the reference in subsection (3) to either House of Parliament is to be read as a reference to Senedd Cymru.”(3) In section 26 (date of operation of orders and certificates), for subsections (1) and (2) substitute—“(1A) A compulsory purchase order confirmed under Part 2 becomes operative—(a) if it is confirmed unconditionally, on the date on which a confirmation notice in respect of the order is first published as required by section 15(3)(a);(b) if it is confirmed conditionally, on the date on which a fulfilment notice in respect of the order is first published as required by section 15(4C)(b)(i).“(1B) A compulsory purchase order made under Schedule 1 becomes operative—“(a) if it is made unconditionally, on the date on which a making notice in respect of the order is first published as required by paragraph 6(3)(a) of that Schedule;“(b) if it is made conditionally, on the date on which a fulfilment notice in respect of the order is first published as required by paragraph 6(4C)(b)(i) of that Schedule.“(1C) Subsections (1A) and (1B) do not apply to an order to which the Statutory Orders (Special Procedure) Act 1945 applies.“(2A) A certificate given under Part 3 becomes operative on the date on which it is first published as required by section 22(a).“(2B) A certificate given under Schedule 3 becomes operative on the date on which it is first published as required by paragraph 9(a) of that Schedule.(3) This section is subject to section 24.”Housing Act 1985 (c. 68)
4 (1) The Housing Act 1985 is amended as follows.“(2) In section 582 (suspension of recovery of possession of certain premises when compulsory purchase order made)—(a) in subsection (2), for paragraph (b) substitute—“(b) any earlier date on which—(i) the Secretary of State notifies the authority that the Secretary of State declines to confirm the order,(ii) the order (having been confirmed conditionally) expires by virtue of section 13BA(2)(b) of the Acquisition of Land Act 1981, or(iii) the order is quashed by a court.”;(b) in subsection (6), for paragraph (a) substitute—“(aa) the Secretary of State notifies the authority that the Secretary of State declines to confirm the compulsory purchase order,(ab) the order (having been confirmed conditionally) expires by virtue of section 13BA(2)(b) of the Acquisition of Land Act 1981,(ac) the order is quashed by a court, or”.(3) In paragraph 3 of Schedule 5A (termination of initial demolition notices)—(a) in sub-paragraph (2), after “(3)(a)” insert “or (aa)”;(b) in sub-paragraph (3)—(i) omit the “or” at the end of paragraph (a);(ii) after paragraph (a) insert—“(aa) a decision under section 13BA(2)(b)(ii) of that Act that conditions subject to which the order was confirmed have not been met, or” (c) in sub-paragraph (4), after “(3)(a)” insert “or (aa)”;(d) after sub-paragraph (6) insert—“(6A) If—(a) a compulsory purchase order has been made as described in sub-paragraph (2),(b) the order expires by virtue of section 13BA(2)(b)(i) of the Acquisition of Land Act 1981, and(c) the effect of the expiry is that the landlord will not be able, by virtue of that order, to carry out the demolition of the dwelling-house,the notice ceases to be in force as from the date when the order expires.”;(e) in sub-paragraph (7), after “(2)” insert “or (6A)”.Town and Country Planning Act 1990 (c. 8)
5 (1) TCPA 1990 is amended as follows.(2) In section 137(7)(b) (discontinuance of compulsory purchase for purpose of blight notice exception)—(a) in sub-paragraph (i), after “order” insert “or the order (having been made conditionally) expires by virtue of paragraph 4AA(2) of Schedule 1 to the Acquisition of Land Act 1981”;(b) in sub-paragraph (ii), at the end insert “or (having been confirmed conditionally) it expires by virtue of section 13BA(2)(b) of the Acquisition of Land Act 1981”.(3) In Note (2) in paragraph 22 of Schedule 13 (land ceasing to be blighted by proposed compulsory purchase order)—(a) omit the “or” at the end of paragraph (a);(b) at the end of paragraph (b) insert “; or“(c) the order (having been confirmed or made conditionally) expires by virtue of section 13BA(2)(b) of, or paragraph 4AA(2) of Schedule 1 to, the Acquisition of Land Act 1981.”Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9)
“6 In section 48(6)(b) of the Listed Buildings Act (discontinuance of compulsory purchase for purpose of listed building purchase notice exception)—“(a) in sub-paragraph (i), at the end insert “or the order (having been made conditionally) expires by virtue of paragraph 4AA(2) of Schedule 1 to the Acquisition of Land Act 1981”;“(b) in sub-paragraph (ii), at the end insert “or (having been confirmed conditionally) it expires by virtue of section 13BA(2)(b) of the Acquisition of Land Act 1981”.Historic Environment (Wales) Act 2023
7 (1) In section 111(8)(b) of the Historic Environment (Wales) Act 2023 (discontinuance of compulsory purchase for purpose of listed building purchase notice exception)—(a) in the English language text—(i) in sub-paragraph (i), at the end insert “or (having been confirmed conditionally) it expires by virtue of section 13BA(2)(b) of the Acquisition of Land Act 1981”;(ii) in sub-paragraph (ii), at the end insert “or the order (having been made conditionally) expires by virtue of paragraph 4AA(2) of Schedule 1 to that Act”;(b) in the Welsh language text—(i) in sub-paragraph (i), at the end insert “neu pan fydd (ar ôl cael ei gadarnhau’n amodol) yn dod i ben yn rhinwedd adran 13BA(2)(b) o Ddeddf Caffael Tir 1981”; “(ii) in sub-paragraph (ii), at the end insert “neu pan fydd y gorchymyn (ar ôl cael ei wneud yn amodol) yn dod i ben yn rhinwedd paragraff 4AA(2) o Atodlen 1 i’r Ddeddf honno”.“(2) The Secretary of State may, by regulations, amend sub-paragraph (1) before it comes into force in consequence of the provision amended by that sub-paragraph being enacted other than as proposed in the relevant iteration of the Historic Environment (Wales) Bill.(3) In sub-paragraph (2)—“(a) the “Historic Environment (Wales) Bill” means the Bill of that name introduced in Senedd Cymru on 4 July 2022, and“(b) the “relevant iteration” of that Bill is the Bill as it stands after consideration by the Legislation, Justice and Constitution Committee of the Senedd on 13 February 2023.”Member’s explanatory statement
This new Schedule brings together various amendments in consequence of the introduction of conditional compulsory purchase orders (some of which are currently elsewhere in the Bill and some of which are new).
Baroness Scott of Bybrook
““(4) In section 582 of the Housing Act 1985 (suspension of recovery of possession of certain premises when compulsory purchase order made)—“(a) in subsection (2)(a), for “third anniversary of” substitute “final day of the period of three years beginning with”;(b) after subsection (6) insert—““(6A) If the compulsory purchase order specifies a period longer than three years under section 13D of the Acquisition of Land Act 1981, the references in this section to the period of three years are to be read as references to the period specified in the order.””Member’s explanatory statement
This amendment adds consequential amendments to Clause 171.
Baroness Scott of Bybrook
“Power to require prospects of planning permission to be ignored(1) In the Acquisition of Land Act 1981—“(a) in section 7(3) (regulations subject to negative procedure), before “paragraph 4A” insert “section 15A(11) or”;“(b) in section 14A (confirmation by acquiring authority), after subsection (2) insert— ““(2A) Nor does it apply to an order directing that compensation is to be assessed in accordance with section 14A of the Land Compensation Act 1961 (see section 15A).”(c) after section 15 insert—“Special provision about compensation
15A
Directions applying section 14A of the Land Compensation Act 1961
(1) Subsection (2) applies if—(a) an acquiring authority submits a compulsory purchase order for confirmation, and(b) the authorising enactment is listed in Schedule 2A.“(2) The acquiring authority may include in the order a direction that compensation is to be assessed in accordance with section 14A of the Land Compensation Act 1961 (cases where prospect of planning permission to be ignored); and if it does so the following provisions of this section apply.(3) The acquiring authority must submit to the confirming authority a statement of commitments together with the order.“(4) A “statement of commitments” is a statement of the acquiring authority’s intentions as to what will be done with the project land should the acquisition proceed, so far as the authority relies on those intentions in contending that the direction is justified in the public interest.(5) If the authorising enactment is listed in any of paragraphs 1 to 6 of Schedule 2A, those intentions must include the provision of a certain number of units of affordable housing.“(6) The statement under section 12(1)(a) must include a statement of the effect of the direction; and paragraphs (ba) and (bb) of the same subsection apply in respect of the statement of commitments as they apply in respect of the compulsory purchase order.“(7) The confirming authority may permit the acquiring authority to amend the statement of commitments before the decision whether to confirm the order is made.(8) But the confirming authority may do so—“(a) only if satisfied that the amendment would not be unfair to any person who made or could have made a relevant objection for the purposes of section 13, and“(b) if the authorising enactment is listed in any of paragraphs 1 to 6 of Schedule 2A, only if the statement of commitments as amended will still comply with subsection (5).(9) If the confirming authority decides to confirm the order in accordance with the applicable provisions of this Part—(a) it may confirm the order with the direction included if satisfied that the direction is justified in the public interest;(b) otherwise, it must modify the order so as to remove the direction.“(10) If the order is confirmed with the direction included, a confirmation notice under section 15 must (in addition to the matters set out in subsection (4) of that section)—(a) state the effect of the direction,(b) explain how the statement of commitments may be viewed, and(c) explain that additional compensation may become payable if the statement of commitments is not fulfilled. (11) In this section—““the authorising enactment” means the enactment that confers the power to make the compulsory purchase to which the order in question relates;“the project land” means—(a) the land proposed to be acquired further to the compulsory purchase order, and(b) any other land that the acquiring authority intends to be used in connection with that land;“unit of affordable housing” means a building or part of a building that is—(a) constructed or adapted for use as a separate dwelling, and(b) is to be used as—(i) social housing within the meaning of Part 2 of the Housing and Regeneration Act 2008, or“(ii) housing of any other description that is prescribed.”;(d) after Schedule 2 insert—“Schedule 2AEnactments eligible for directions applying section 14A of the Land Compensation Act 1961Enactments authorising acquisitions for purposes including housing
1 Section 142 of the Local Government, Planning and Land Act 1980 (acquisition by urban development corporation).2 Section 17 of the Housing Act 1985 (acquisition by local housing authority).“3 Section 226 of the Town and Country Planning Act 1990 (acquisition by local authority for development or planning purposes).4 Section 333ZA of the Greater London Authority Act 1999 (acquisition by Greater London Authority for housing or regeneration purposes).“5 Section 9 of the Housing and Regeneration Act 2008 (acquisition by the Homes and Communities Agency).6 Section 207 of the Localism Act 2011 (acquisition by mayoral development corporation).Enactments authorising acquisitions for purposes of the NHS
7 Paragraph 46 of Schedule 4 to the Health and Social Care (Community Health and Standards) Act 2003 (acquisition by NHS foundation trust).8 Paragraph 27 of Schedule 4 to the National Health Service Act 2006 (acquisition by NHS trust).9 Paragraph 20 of Schedule 2 to the National Health Service (Wales) Act 2006 (acquisition by local health board).Enactment authorising acquisitions for educational purposes
10 Section 530 of the Education Act 1996 (acquisition by local authority for purposes of educational institution or function).”(2) In the Land Compensation Act 1961—(a) after section 14 insert—“14A Cases where prospect of planning permission to be ignored“(1) The following provisions apply in relation to an acquisition if the compulsory purchase order authorising the acquisition directs that compensation is to be assessed in accordance with this section.(2) Section 14 does not apply.“(3) In assessing the value of land in accordance with rule (2) in section 5, it is to be assumed that no planning permission would be granted for development on the relevant land (whether alone or together with other land). (4) Subsection (3) does not prevent account being taken of planning permission that has already been granted.(5) Subsection (3) does not apply in relation to development consisting of the use as two or more separate dwellings of any building previously used as a single dwelling.(6) Schedule 2A provides for the payment of additional compensation in respect of the acquisition in certain circumstances.”(b) in section 32 (interest from entry on land), after subsection (2) insert—““(3) This section does not apply in relation to additional compensation payable under Schedule 2A.”(c) after the second Schedule insert—“Schedule 2AAdditional compensation where section 14A appliedDirections for additional compensation
1 (1) This paragraph applies if—(a) an interest in land has been acquired further to a compulsory purchase order, and(b) the order directed that compensation was to be assessed in accordance with section 14A.“(2) The confirming authority must, on an application by an eligible person, make a direction for additional compensation if it appears to the confirming authority that the following conditions are met.(3) Those conditions are—(a) that the statement of commitments has not been fulfilled,(b) either—“(i) that the period of 10 years beginning with the date on which the compulsory purchase order became operative has expired, or“(ii) that there is no longer any realistic prospect of the statement of commitments being fulfilled within that period, and“(c) that the initial direction would not have been confirmed on the basis of a statement of commitments reflecting what has in fact been done with the project land since its acquisition.(4) In sub-paragraph (3)—“the statement of commitments” means the statement of commitments submitted in connection with the compulsory purchase order under section 15A(3) of the Acquisition of Land Act 1981 (and if the statement was amended after its submission, means the statement as amended);“the initial direction” means the direction referred to in sub-paragraph (1)(b) (and that direction was “confirmed” when the compulsory purchase order was confirmed with the inclusion of the direction);““the project land” means the land treated as the project land for the purposes of the statement of commitments;and that statement is “fulfilled” if what is done with that land after its acquisition is materially in accordance with the statement.“(5) The effect of a direction for additional compensation is that each eligible person may make a claim to the acquiring authority for any additional compensation in respect of the acquisition payable to the person under this Schedule.“(6) A person is an “eligible person” for the purposes of this Schedule if the person was entitled to compensation in respect of the acquisition (and see also paragraph 4(1)). Amount of additional compensation
“2 (1) Additional compensation in respect of an acquisition is payable to an eligible person only if, in relation to that person, the alternative amount is greater than the original amount.(2) The amount payable is the difference between the two amounts.(3) The “original amount” is the amount of compensation awarded or agreed to be paid to the person in respect of the acquisition.“(4) The “alternative amount” is the amount of compensation that would have been assessed as due to the person in respect of the acquisition had compensation been assessed without the application of section 14A.(5) If the original amount was agreed, the relevant valuation date for the purposes of the assessment imagined under sub-paragraph (4) is the date on which the agreement was concluded.“(6) In relation to the determination of an amount of additional compensation under this Schedule, section 17(2)(b) applies as if its reference to the amount of compensation were to the amount of additional compensation.“(7) A certificate issued under section 17 (or 18) after the award or agreement referred to in sub-paragraph (3) is to have effect for the purposes of the assessment imagined under sub-paragraph (4) as if it had been issued before that assessment.(8) Any amount of compensation that is or would be attributable to disturbance, severance or injurious affection is to be ignored for the purposes of sub-paragraphs (3) and (4).Time limit for application for direction
3 An application under paragraph 1(2) may not be made after the expiry of the period of 13 years beginning with the date on which the compulsory purchase order became operative.Mortgages
“(1) For the purposes of this Schedule an “eligible person” includes a person who would have been entitled to compensation in respect of the acquisition but for the existence of a mortgage (but the mortgage is in that case still to be taken into account in determining the original and alternative amounts under paragraph 2).(“2) An amount agreed or awarded to be paid to a mortgagee under section 15 or 16 of the Compulsory Purchase Act 1965 in respect of the acquisition is to be treated for the purposes of this Schedule as compensation in respect of the acquisition.“(3) The reference in sub-paragraph (2) to an amount paid under section 15 or 16 of the Compulsory Purchase Act 1965 (“the applicable section”) includes an amount paid under section 52ZA or 52ZB of the Land Compensation Act 1973 and taken into account by virtue of section 52ZC(7)(d) of that Act for the purposes of the applicable section.“(4) Additional compensation payable under this Schedule to a person in the person’s capacity as a mortgagee (or to a person exercising rights of a mortgagee) is to be applied towards the discharge of the sums secured by the mortgage.“(5) If there is no remaining sum secured by the mortgage, the additional compensation that would be payable as described in sub-paragraph (4) is instead payable to the person who is an eligible person by virtue of the interest that was subject to the mortgage. “(6) If the additional compensation that would be payable as described in sub-paragraph (4) exceeds the total of the remaining sums secured by the mortgage, the amount of the excess is instead payable to the person who is an eligible person by virtue of the interest that was subject to the mortgage.Successors-in-title
“5 (1) This paragraph applies if, had the compensation to which an eligible person was entitled in respect of the acquisition remained unpaid, the right to be paid it would now vest in some other person (assuming that it remained enforceable and any obligations in respect of the right had been complied with).(2) If the eligible person is still alive or in existence, the rights that the eligible person would have under this Schedule are exercisable by the other person and not by the eligible person.“(3) If the eligible person is no longer alive or in existence, the rights that the eligible person would have under this Schedule if that person were still alive or in existence are exercisable by the other person.“(4) The right exercisable by the other person under sub-paragraph (2) or (3) is subject to any restriction, condition or other incident to which the right vested in that person as imagined under sub-paragraph (1) would be subject.(5) Additional compensation paid to the other person by virtue of sub-paragraph (2) or (3) must be dealt with by the person in any way in which the person would have to deal with compensation paid to that person further to the right vested in that person as imagined under sub-paragraph (1).“(6) If a person is an eligible person by virtue of paragraph 4(1), the reference in sub-paragraph (1) to compensation to which the person was entitled is to be read as a reference to the compensation to which the person would have been entitled but for the mortgage.Consequential losses
(1) The relevant authority may by regulations provide for additional compensation payable on a claim under paragraph 1(5) to include (in addition to any amount payable under paragraph 2) an amount to make good qualifying losses.“(2) “Qualifying losses” are financial losses shown to have been suffered by an eligible person, or a person entitled to exercise the rights of the eligible person under paragraph 5, as a result of the compensation initially payable to the eligible person in respect of the acquisition being of the original amount rather than the alternative amount.“(3) In the case of an eligible person who is so by virtue of an interest that was subject to a mortgage, the reference in sub-paragraph (2) to compensation payable to the eligible person is to be taken to include compensation payable to the mortgagee of that interest.“(4) Regulations under this paragraph may limit the qualifying losses in respect of which additional compensation is payable under the regulations by reference to—(a) a description of loss,(b) an amount, or(c) any other circumstance.Procedure etc
7 (1) The relevant authority may by regulations make provision— “(a) about the procedure for applications under paragraph 1(2) or claims under paragraph 1(5) (including provision about the costs of such applications or claims);“(b) about steps that must be taken by the acquiring authority or the confirming authority for the purposes of publicising or giving notice of a direction for additional compensation;(c) for interest to be applied to amounts of additional compensation that are payable;(d) about how or when additional compensation (and any interest) is to be paid.(2) Regulations under this paragraph about costs of claims under paragraph 1(5)—“(a) may modify or disapply section 29 of the Tribunals, Courts and Enforcement Act 2007 (costs or expenses) or provisions in Tribunal Procedure Rules relating to costs;(b) may apply (with or without modifications) section 4 of this Act;and section 4 of this Act does not apply in relation to such a claim unless so applied.Regulations
8 (1) For the purposes of this Schedule “the relevant authority” is—(a) the Secretary of State, in relation to England;(b) the Welsh Ministers, in relation to Wales.(2) Regulations under this Schedule may make—“(a) consequential, supplementary, incidental, transitional or saving provision;(b) different provision for different purposes.(3) Regulations under this Schedule are to be made by statutory instrument.(4) A statutory instrument containing such regulations is subject to annulment in pursuance of—(a) a resolution of either House of Parliament, in the case of regulations made by the Secretary of State, or(b) a resolution of Senedd Cymru, in the case of regulations made by the Welsh Ministers.Interpretation
9 (1) In this Schedule—(a) “the confirming authority” means—(i) the person who confirmed the compulsory purchase order, or(ii) any successor to that person’s function of confirming compulsory purchase orders of the type in question;(b) references to “the acquisition” or “the compulsory purchase order” are to the acquisition or order by virtue of which paragraph 1 applies;(c) references to the acquisition of an interest in land include—(i) the creation of such an interest, and(ii) the acquisition or creation of a right in or over land;and references to interests in land are to be read accordingly.“(2) In the case of a compulsory purchase order made under section 10(1) of, and Part 1 of Schedule 4 to, the New Towns Act 1981 (compulsory acquisition by new town development corporation in usual cases), the reference in paragraph 1(4) to section 15A(3) of the Acquisition of Land Act 1981 is to be read as a reference to paragraph 5A(2) of Schedule 4 to the New Towns Act 1981. “(3) In the case of a compulsory purchase order made under section 13(1)(a) of, and Part 1 of Schedule 5 to, the New Towns Act 1981 (compulsory acquisition by new town development corporation of statutory undertakers’ operational land)—(a) the reference in paragraph 1(4) to section 15A(3) of the Acquisition of Land Act 1981 is to be read as a reference to paragraph 5A(2) of Schedule 5 to the New Towns Act 1981, and(b) the references in paragraph 1(4) and sub-paragraph (1)(a) to the confirmation of the order are to be read as references to the making of the order.(4) If—“(a) an interest in land is acquired further to section 154(2) of the Town and Country Planning Act 1990 (deemed compulsory acquisition further to blight notice), and(b) the land falls within paragraph 22 of Schedule 13 to that Act (land blighted by compulsory purchase order),“the interest is to be treated for the purposes of this Schedule as having been acquired further to the compulsory purchase order by virtue of which the land falls within that paragraph.”(3) In the New Towns Act 1981—(a) in Schedule 4 (procedure for compulsory acquisition by new town development corporation in usual cases), after paragraph 5 insert—“(1) A development corporation submitting an order to the Secretary of State under this Part of this Schedule may include in the order a direction that compensation is to be assessed in accordance with section 14A of the Land Compensation Act 1961 (cases where prospect of planning permission to be ignored); and if it does so the following provisions of this paragraph apply.(2) The corporation must submit a statement of commitments together with the order.“(3) A “statement of commitments” is a statement of the corporation’s intentions as to what will be done with the project land should the acquisition proceed, so far as the corporation relies on those intentions in contending that the direction is justified in the public interest.(4) Those intentions must include the provision of a certain number of units of affordable housing.(5) The notice under paragraph 2(1) must—(a) state the effect of the direction, and(b) name a place where a copy of the statement of commitments may be seen at any reasonable hour.(6) The Secretary of State may permit the corporation to amend the statement of commitments before the decision whether to confirm the order is made.(7) But the Secretary of State may do so—“(a) only if satisfied that the amendment would not be unfair to any person who duly made or could duly have made an objection for the purposes of paragraph 4, and(b) only if the statement of commitments as amended will still comply with sub-paragraph (4).(8) If the Secretary of State decides to confirm the order under paragraph 3, the Secretary of State—(a) may confirm the order with the direction included if satisfied that the direction is justified in the public interest;(b) otherwise, must modify the order so as to remove the direction.“(9) If the order is confirmed with the direction included, the notice under paragraph 5 must— (a) state the effect of the direction,(b) explain how the statement of commitments may be viewed, and(c) explain that additional compensation may become payable if the statement of commitments is not fulfilled.(10) In this paragraph—“the project land” means—(a) the land proposed to be acquired further to the compulsory purchase order, and(b) any other land that the corporation intends to be used in connection with that land;“unit of affordable housing” means a building or part of a building that is—(a) constructed or adapted for use as a separate dwelling, and(b) is to be used as—(i) social housing within the meaning of Part 2 of the Housing and Regeneration Act 2008, or“(ii) housing of any other description that is prescribed.”;“(b) in Schedule 5 (procedure for compulsory acquisition by new town development corporation of statutory undertaker’s operational land), after paragraph 5 insert—““(1) A development corporation making an application under this Part of this Schedule may include in the application a request for a direction that compensation is to be assessed in accordance with section 14A of the Land Compensation Act 1961 (cases where prospect of planning permission to be ignored); and if it does so the following provisions of this paragraph apply.(2) The corporation must submit a statement of commitments together with the application.“(3) A “statement of commitments” is a statement of the corporation’s intentions as to what will be done with the project land should the acquisition proceed, so far as the corporation relies on those intentions in contending that the direction would be justified in the public interest.(4) Those intentions must include the provision of a certain number of units of affordable housing.(5) The notice under paragraph 2 must—(a) state that the request has been made and what the effect of the direction would be, and(b) name a place where a copy of the statement of commitments may be seen at all reasonable hours.(6) The Secretary of State and the appropriate Minister may permit the corporation to amend the statement of commitments before the decision whether to make an order on the application is made.(7) But they may do so—“(a) only if satisfied that the amendment would not be unfair to any person who duly made or could duly have made an objection for the purposes of paragraph 3, and(b) only if the statement of commitments as amended will still comply with sub-paragraph (4). “(8) If the Secretary of State and the appropriate Minister decide to make an order on the application under paragraph 3, they may include the direction in the order only if satisfied that the direction is justified in the public interest.(9) If an order is made with the direction included, the notice under paragraph 5 must—(a) state the effect of the direction,(b) explain how the statement of commitments may be viewed, and“(c) explain that additional compensation may become payable if the statement of commitments is not fulfilled.(10) In this paragraph—“the project land” means—(a) the land proposed to be acquired further to the compulsory purchase order, and(b) any other land that the corporation intends to be used in connection with that land;“unit of affordable housing” means a building or part of a building that is—(a) constructed or adapted for use as a separate dwelling, and(b) is to be used as—(i) social housing within the meaning of Part 2 of the Housing and Regeneration Act 2008, or“(ii) housing of any other description that is prescribed.”“(4) In section 157 of TCPA 1990 (special provisions as to compensation for acquisitions further to blight notices), before subsection (1) insert—“(A1) Where—(a) an interest in land is acquired in pursuance of a blight notice,(b) the interest is one in respect of which a compulsory purchase order is in force, and(c) the order directs that compensation is to be assessed in accordance with section 14A of the Land Compensation Act 1961,“the compensation payable for the acquisition is to be assessed in accordance with that direction and as if the notice to treat deemed to have been served in respect of the interest under section 154 had been served in pursuance of the compulsory purchase order.””Member’s explanatory statement
This new Clause allows a Minister confirming a compulsory purchase order to direct, in certain cases involving affordable housing, health or education, that compensation should be assessed on the basis that no new planning permission would be granted for the land. It also allows the effect of that direction to be reversed if the land is not subsequently used as planned.