Planning and Infrastructure Bill

Lord Roborough Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

Moved by

[Lord Roborough]

208: Leave out Clause 90

[Lord Roborough (Con)]

My Lords, I will also speak to my Amendment 231A. I address Amendment 208 individually, rather than as a group as in Committee, because the facts have changed following the CG Fry Supreme Court judgment. This creates an opportunity to accelerate home building, which the Bill currently threatens to eliminate unnecessarily. I will speak to the application of the habitats regulations to Ramsar sites from the Back Benches, and leave the policy area of housebuilding to my Front-Bench colleagues, as it is their speciality. My amendments would remove Clause 90 and Schedule 6 from the Bill, preventing the legal imposition of the habitats regulations on Ramsar sites. Before I go on, I refer the House to my register of interests as an owner of development land, which, as far as I know, is not impacted by nutrient neutrality or Ramsar.

We in government chose to apply the habitats regulations to Ramsar sites through policy as a well-intentioned move to recognise the special international status of these wetland sites. I do not see evidence that our largest neighbours, such as France and Germany, have chosen to do the same. Since then, we have all watched in horror as Natural England’s advice on nutrient neutrality within the habitats regulations has led to as many as 160,000 new homes being blocked. We know that 18,000 of these are through the application of the habitats regulations to the Ramsar site on the Somerset Levels. I and my noble friends have asked the Government several times: how many more homes than this 18,000 are currently blocked by the unnecessary application of the habitats regulations to Ramsar sites? I hope that we can receive that answer today.

The CG Fry judgment, that simply adopting this as policy does not carry legal weight, was right. The habitats regulations derived from EU law and were designed to apply to sites with protection under EU law and no further. Natural England has been able to advise for years that specific land should have SPA or SAC designation and be brought under the habitats regulations. The fact that many Ramsar sites have only partial or no protection as European sites is because, so far, Natural England has judged that they do not need it. Ramsar sites already have protection under paragraph 194 of the National Planning Policy Framework. If, after the CG Fry judgment, Natural England were to advise that more European designations were necessary on the Ramsar sites and the Government accepted that, the habitat regulations would apply at that point. Should my amendment be passed, I am sure that Natural England will want to evaluate that point, and I would urge it to be highly scientific and evidence-based in that process, because the eyes of those needing houses will be on them.

The Natural England advice in the CG Fry case relating to the Ramsar site was not even that development would add to the level of phosphates in the Somerset Levels but that it would slow the rate of improvement in phosphate levels. Natural England had no objection based on the SPA designation for the Somerset Levels. This appears to be a pretty tenuous argument.

I urge the Government to accept my amendments, not to blindly block new housebuilding, and allow the habitats regulations to perform more closely to their original intention. Clause 90 and Schedule 6 unnecessarily and voluntarily gold-plate the application of the habitats regulations to Ramsar sites, for which they were not intended, to the detriment of the broader interests of our country. Without my amendments, this planning Bill, designed to accelerate housebuilding and growth, will actually block housebuilding. I beg to move.

[Lord Fuller (Con)]

My Lords, I have heard time and again during the passage of this Bill from the Government Front Bench that this is a Bill to streamline the obstacles for anybody who wants to get anything done in this country. That is what Amendment 208 does, and I support it entirely.

Just under two weeks ago in the Supreme Court, as my noble friend Lord Roborough mentioned, four years of litigation concluded in the Fry case. The case revolved around the protections of Ramsar sites. In essence, the court was asked to judge whether Ramsar sites were subject to the same onerous requirements as sites protected by the EU habitats directive, including the potential for developments to be blocked at the stage of discharging planning conditions, many years after they have obtained that planning permission.

For over 50 years—since 1971, when the Ramsar treaty relating to over 2,500 wetlands in 172 nations was signed in the town of Ramsar in modern day Iran—it has never been the case that EU habitats directives apply to these important places. For that period, over the entire world, Ramsar sites have been protected without any reference to the EU, EU regulations or any of the other state paraphernalia that flows from Brussels. Why would they be? There are 23 such sites in Brazil, six in Cameroon, one in Mongolia, three in Equatorial Guinea and 39 in Japan. The EU is irrelevant to these places.

Natural England, as the Government’s statutory adviser, quite wrongly asserted that EU habitats regulations were relevant when they are not. Do not take my word for it: take the word of the Supreme Court. It concluded that the regulator had no business in making the equivalence between Ramsar and the other nature sites covered by the habitats directive. The Supreme Court held that Ramsar sites were not subject to this level of protection as they fell outside the habitats directive. Twelve days ago, a regulatory burden was lifted. Inexplicably, the Government now seek to undo that pro-growth judgment by bringing the Ramsar sites back within the habitats regulations, even though they fall outside the regulations’ parent directive.

We need a moment to see what has happened here. The justices concluded that Natural England had overreached itself in its advice to government, that it could not interpret the legislation accurately, that it misdirected itself and, crucially, misadvised the entire development industry as to the truth. Natural England’s dossier had the effect of holding up tens of thousands of homes. The evidence before the court in the Fry case was that 18,000 homes had been held up in Somerset alone, many already with planning permission, owing to Natural England’s misplaced concerns.

--- Later in debate ---

Finally, the amendment would have unintended consequences for the whole of Part 3 of the Bill. Part 2 of Schedule 6 makes a number of crucial consequential amendments to ensure that the NRF is operable, from amending the period of validity of species licences to removing the ability of planning conditions to be deemed discharged. Removing Schedule 6 would therefore not have the targeted effect that some may think it would. With that explanation, I hope the noble Lord feels able to withdraw his amendment.

[Lord Roborough (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate, to my noble friend on the Front Bench for her support and to the Minister for her well thought-through and considered reply.

I have to say that I am not convinced. The fundamental principle of the habitat regulations is that they are supposed to apply to EU-designated sites. Should these Ramsar sites be deserving of that protection, then surely it is up to Natural England to advise the Government that that is the case and to put in place those protections. Without that, it is really not clear why we alone among the major European economies should be choosing to hamper our building in this way.

I am grateful for the detailed response regarding which houses are being held up. These are still material numbers of houses. The effect of the CG Fry judgment alone was to release 650 houses, and, while that may be over a 12-year period, that is still a lot of houses. The country needs those houses, and the Bill is supposed to deliver them. So we on these Benches cannot sit on our hands and watch this happen. Given that the Government are determined to plough ahead with this, I am forced to test the opinion of the House.

--- Later in debate ---

[Lord Meston (CB)]

My Lords, I shall speak to Amendment 238A in this group, which is in the same terms as an amendment that I tabled and withdrew in Committee, reserving the right to return to it later. I have decided to bring it back for further consideration and will seek to reinforce the arguments for it.

This takes us into the largely unexplored Part 5 of the Bill and concerns the scope of exceptions to home-loss payments in what is now Clause 105. The compulsory acquisition of property, particularly a dwelling, is a drastic step for which clear and proper justification should be required. Normally the person displaced from a property that is his or her dwelling receives the market value of the property, together with compensation by a statutory home loss payment, which provides some modest recognition that the person concerned is being compelled to leave his or her home.

However, in Clause 105, a proposed new section of the 1973 Act stipulates exceptions to the right to a home loss payment when the property has been allowed to get into disrepair or there have been other failures to comply with notices or orders which have been served. Homeowners caught by those exceptions will be denied any home loss payment. Of course, the assessed amount which the individual receives on compulsory purchase will always already reflect the lack of repair. Deprivation of the home loss payment would be therefore in addition to the reduced price reflecting a poor state of repair.

Repairs or improvements to a home may not always get done, for a variety of reasons. There may well be situations in which denial of home loss payments would be justified when there has been a significant, culpable failure to comply with statutory obligations to maintain, repair or safeguard a property wholly or in part. But the proposed list of unqualified exceptions in the Bill as drafted could operate unduly harshly and punitively, taking no account of individual circumstances or any underlying reason for non-compliance with the notice or order, which would automatically trigger forfeiture of the home loss payment.

The Bill does not allow for the exercise of any discretion in depriving the homeowner of that payment. In her helpful response to the amendment in Committee, the Minister said that it would be for individual local authorities to determine whether it is appropriate to serve an improvement notice or order under the provisions listed in the 1973 Act, taking into account the personal circumstances of the owner. I am sure that is correct, but the situation contemplated by my amendment is that arising at a later stage, after the order or notice has been served, when the homeowner to be displaced may reasonably want to show why personal circumstances do not then allow him or her to comply with the notice or order.

I wish to stress as quickly as I can three points. First, the amendment would not place any obligation on the local authority to investigate the reasons for non-compliance in any way, unless and until the person concerned tried to show that the omissions were not deliberate and that the cause of non-compliance was either that the required work could not have been carried out because of that person’s ill health or infirmity or that it could not have been afforded because of financial difficulty, such as an inability to obtain or afford funding. The burden of proving any of that would remain on the person to be displaced and would require credible evidence. The only obligation on the local authority at that stage would be to look at the realities of the cause for non-compliance.

Secondly, in these cases the property being compulsorily acquired is a home, and the displaced homeowner will almost certainly need the home loss payment to help find a replacement home. All this amendment seeks to do is obtain some modification of the blanket application of exclusions from such payments in an attempt to make the proposed new clause fairer and more reasonable when there has been what might be called no-fault non-compliance.

Thirdly, of course it is important to consider the financial implications for local authorities, but compulsory acquisition of homes in disrepair where notices have not been complied with is rare and, if the amendment is accepted, the number of cases in which the claimant could show genuine inability to comply with the required work because of ill health or lack of finance will be rarer still. This amendment would allow those people some opportunity to show those reasons and receive the payment which the Bill would otherwise take away from them. If the Government are not minded to look at this again and reconsider the amendment or something like it, I at least hope there would be an indication that guidance would allow such circumstances to be considered. If it were possible for that to happen, I suggest that unnecessary appeals could be avoided.

[Lord Roborough (Con)]

My Lords, Amendments 242 and 243 are in my name. The purpose of these amendments is simply to eliminate the ability of the Government to ignore hope value when assessing value on compulsory purchase orders. The Minister has kindly laid out in writing that this will happen only in limited circumstances and, by implication, that it is of little concern. That is wrong. In Committee, the noble Lord, Lord Cromwell, put it far more simply and elegantly than I when he said that hope value is actually market value. He is right. Other government departments accept this. When land is valued for inheritance tax or capital gains tax on non-financial transfers, hope value is explicit. Tax is paid on that hope value, so why should another government department be entitled to disregard it?

Under this Government’s family farm death tax, greater inheritance tax will be paid based on this hope value of land that might lift it, in certain circumstances, from around £10,000 per acre to as much as £50,000 per acre. What happens if the Government then turn around two years later and compulsorily purchase that land at £10,000 per acre because they want to disregard hope value? This is surely absurd; that hope value has not disappeared. The Government should pay for it.

This is a power of confiscation and, as my noble friend Lord Sandhurst is probing with Amendment 251, and as I raised at Second Reading and again in Committee, it is in breach of the European Convention on Human Rights. The Minister’s previous responses that the ECHR allows for CPOs is right, but it does not allow them at less than market value. His Majesty’s Government appear to put the ECHR on a pedestal; I am curious whether that is only when it suits them. CPO powers are, of course, essential to a modern Government carrying out their duties, but this cannot be a tyranny of the majority. The rights of the individual have to be respected.

Can the Minister assure us that, should she reject my amendments, CPO valuations will include all elements of market value attributed to that land under historic valuation parameters, as I believe the Red Book valuations already incorporate? I refer the House to my declaration of interests as a landowner, among other things.

[Lord Banner (Con)]

My Lords, Amendment 250 is in my name and those of the noble Lords, Lord Pannick and Lord Grabiner, who are unable to be here this evening but who continue to support it, and the noble Lord, Lord O’Donnell. This amendment would address the wide-reaching consequences for persons who acquire former open-space land in light of a Supreme Court decision in 2023, R (on the application of Day) v Shropshire Council [2023] UKSC 8. Given that this amendment has been misunderstood by some and mischaracterised by others, I need to explain what it is and is not about.

Open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to that land for the purpose of recreation. Section 123(2A) of the Local Government Act 1972 provides that the local authority may not dispose of

“any land consisting or forming part of an open space”

unless before it does so it advertises its intention in a local newspaper for two weeks and considers any objections received in response to that advertisement. Section 123(2B) provides that the sale of the land post advertisement then proceeds free of the statutory trust.

If a local resident or community group considers that the disposal of land is unlawful for any reason, including but not limited to a failure to comply with the requirement to advertise, they have a remedy: they can bring a claim for judicial review of the local authority’s decision in the High Court. If they have good reason for bringing the claim late—for example, if they were not aware of the decision at the time it was made—they can draw the court’s attention to that in support of an application for a discretionary extension of time.

In public law, the normal position is that, if a public body’s decision has not been successfully challenged by way of judicial review, that decision is treated as having all the effects in law of a valid decision. However, in Day, the Supreme Court held that, even when the decision to dispose of open-space land has not been challenged, and even if it was made many years or even decades in the past, a historic failure to comply with the advertising requirements means that the statutory trust continues to exist, and therefore continues to frustrate the beneficial repurposing or redevelopment of the land in question.

Crucially, that is the case even if the land was sold in good faith by the authority to a bona fide purchaser who was completely unaware of any procedural irregularity, and even if there remains no dispute that the land was surplus to requirements when it was sold.

--- Later in debate ---

[Baroness Pinnock (LD)]

My Lords, in Committee, the noble Lord, Lord Cameron of Dillington, made a compelling case for the issue which he has reiterated this evening—the necessity for a code of practice to set rules that can be enforced on compulsory purchase order issues. I said in Committee that I had a lot of sympathy with what the noble Lord had to say. He has made an even stronger case this evening with the real-life examples that he has quoted to us.

I hope that the Minister can respond very positively this time to the genuine issues that are being raised, with a solution being offered. So, as the noble Lord, Lord Cameron, has said, we look forward to what the Minister has to say, but this issue is not going to go away unless the Government grasp it and deal with it.

[Lord Roborough (Con)]

My Lords, I rise briefly to add our support for Amendment 249, tabled by the noble Lord, Lord Cameron of Dillington. I would draw a thread through all these debates that we have had on Report on compulsory purchase: this is a necessary tool of government to allow society’s needs to be placed above the individual in a small number of cases where the case is clear-cut.