Report (7th Day) (Continued)
242: After Clause 128, insert the following new Clause—
“British standards: publicationWhere legislation made under the Planning Acts, or a local authority planning policy, refers to a British standard, the Secretary of State or local authority must take such steps as are necessary to make the relevant standard publicly available online free of charge.”
My Lords, for the second time today, I shall speak on behalf of my noble friend Lord Northbrook, who cannot be in his place.
Amendment 242 seeks to make access to planning-related British standards available to everyone free online. Should every citizen not have a right to see relevant British standards free of charge? The cost of gaining access to them at the moment is not exactly modest. A few days ago, an inquiry was made about buying BS5228, which relates to noise and disturbance from construction sites, from the BSI website. The charge for part 1 was £298 and for part 2 was £356—a grand total of £654, which is no mean sum.
What is needed, I suggest on behalf of my noble friend, is an instruction to the British Standards Institution, which publishes the standards online or grants online access to them via public libraries. In Committee the Minister insisted that, as his colleague in another place wrote,
“The BSI are an independent organisation and we therefore cannot compel them to publish some, or indeed any, of their standards without charge”.
May I press my noble friend a little on this? Surely there must be numerous independent organisations referred to in statute whose publications are made available without charge on the internet. For example, air source heat pumps are legally required to comply with MCS planning standards or equivalent standards. The relevant microgeneration installation standard MCS 020 is the property of the MCS charitable foundation and is published on the internet for anyone to read without charge. Why cannot BSI do the same? The principle is clear; British citizens should not have to pay to find out about legal obligations with which they have to comply.
My noble friend objected in Committee, saying that the amendment would destroy the funding integrity of the British Standards Institution. However, since Committee, it has emerged that Libraries NI, the largest single library authority in our country, has introduced free online access to a full database of more than 100,000 British, European and international standards. This amendment is infinitely more modest. It seeks free online access only to British standards related to planning, which must represent a small minority of the total made available in Northern Ireland. So, the question arises: if what this amendment seeks has already been accepted in Northern Ireland, why not in the rest of our country? I am all in favour of every opportunity to bring Great Britain into line with the many good things that have been found in Northern Ireland. The Government claim to be keen to promote digital accessibility. Here is an opportunity for them to do so. I beg to move.
My Lords, it is a pleasure to speak after my noble friend Lord Lexden. In this case, I am going to speak about a slightly different subject, although he made his own case very well. I will speak principally to Amendment 282N, in my name, but associated with it are Amendments 302A, 315ZA and 317, as consequential and related amendments. They have been referred to as my ULEZ amendments, but I am not really going to speak about the merits or demerits of ULEZ. Instead, I will talk about the knotty issue of relations between the elected Mayor of London and the elected borough councils and how they work together to make the capital a success. There has always been the potential for this to go wrong.
I hope noble Lords will forgive me if I remind them of my experience. I was the deputy leader of a London borough when Ken Livingstone was mayor. I chaired for two years during that period London Councils’ transport and environment committee, a statutory committee representing all London boroughs and the Corporation of the City of London, irrespective of party, in their relations with the mayor and Transport for London. Then, a little like a poacher turning gamekeeper—or the other way around—I was a member of the board of Transport for London for eight years and deputy chairman of Transport for London for about half that time.
I have therefore seen those relations operating in practice over a lengthy period. It is fair to say that, under the independent and then Labour mayor Ken Livingstone, they were quite often rather scratchy. They improved considerably when Boris Johnson became mayor. I would like to think—if noble Lords would allow me to be a little boastful—that that was because of the number of people working with him who had experience of local government, such as myself, my noble friend Lady O’Neill of Bexley, who is sitting here, my noble friend Lord Greenhalgh, who is not in his place, and others. There was a much more collaborative relationship.
Under the current incumbent, that collaborative relationship has continued in many respects. This is to be welcomed. For example, the boroughs and the mayor have worked together closely on active travel programmes and various other matters. However, it is clear that, in the case of the extension of the London ultra low emission zone, they have collapsed. What we have are two levels of government, each convinced of their democratic authority, locking horns and threatening a sort of paralysis in transport policy. This could also extend to other areas.
What exists in other parts of the country? In London, the Greater London Authority Act 1999 gives powers in relation to road user charging to the mayor to act without being trammelled in any way by the views of the boroughs, beyond the consultation he is required to conduct with them. When we look to other parts of the country, we see that different legislation applies— Part III of the Transport Act 2000, for those who are interested. In the combined authority areas, these powers are held jointly by the combined authority and the relevant constituent authorities, acting as local traffic authorities. Decisions on road user charging in these areas typically require the majority or unanimous consent of members before any scheme can be established.
In the case of the Greater Manchester Combined Authority, the constitution is explicit in stating that questions relating to road user charging require all 11 members of the combined authority to be unanimously in favour for any vote to be carried. In the West Midlands Combined Authority, changes to transport matters require either a simple majority or a unanimous vote, depending on the question to be decided and on the members entitled to vote. In neither of these cases could road user charging be introduced without the collaboration and assent of the constituent authorities. It is rather different from London.
I instance these points to say that in this country we can embrace a different pattern of the distribution of power. The essence of my amendment is simply to try to extend, in a small way, some of the co-responsibility that exists in Manchester and Birmingham to the arrangements in London. It seeks to rebalance this by bringing the decision-making in London more into line with what exists in the rest of the country.
The amendment would give London borough councils a new power to opt out from—but not veto—certain road user charging schemes in future. First, it would be operative only where the principal purpose of a road user charging scheme applying in the council’s area is the improvement of air quality. Secondly, it would be available only to London borough councils which already meet air quality standards and objectives under the Environment Act 1995—I say in parenthesis that, currently, no London borough meets those standards—or have an approved plan to do so that is an alternative to the plan advanced by the mayor to be achieved through road user charging.
There is no free ticket here for London boroughs away from their responsibilities for air quality. Where the council can show to the satisfaction of the Secretary of State that it has a plan which is likely to achieve and maintain improvements, the Secretary of State would be under a new duty to approve its alternative plan, thus making it eligible to opt out of certain TFL charging schemes.
The combined effect of these various conditions will be that there will be no impairment of the air-quality obligations falling on London boroughs, but there will be the opportunity to show that they can meet them in a way that is more acceptable to their local people, as they judge them on the basis of their democratic mandate. I think that would be a modest and sensible rebalancing of power. It is focused, it is proportionate, and it is good common sense.
I see that my noble friend the Minister has indicated her support for the amendment, and the associated other amendments, and I very much hope that they will find favour across your Lordships’ House.
My Lords, I support my noble friend’s Amendment 282N. In opening, I remind the House that I am the leader of the London Borough of Bexley and am therefore involved in both London Councils and the Local Government Association—although I have not quite made the dizzying heights of being a VP of the Local Government Association, like many Members of this Chamber.
It is important to point out at the outset that I firmly believe in improving air quality, having seen the benefits of improved air quality myself. My parents used to live in Lewisham, and my father suffered from chest problems for years, but that all changed when he moved to Bexley—and not just because it has a good council. As council leader, I am proud to report that, in Bexley, we have good air quality, below the legal limits, and we are always looking at ways to improve that air quality. But we fundamentally believe that the expansion of ULEZ to outer-London, and the way it has been done, is undemocratic.
If this amendment had been in place before, the mayor would not have been able to ignore local views, to fail to engage constructively with the boroughs or to have brought it forward in such a quick way that has had a disastrous impact on many of our residents. He also would not have contradicted the statement he made two years ago that he was not going to expand ULEZ. This amendment highlights a way to protect democracy for those in London going forward.
Local councils understand their locations and their residents—I know many Members here have connections. Bexley, like most other outer-London boroughs, is very different from central or inner-London. That is why my borough, like others, has campaigned against the Mayor of London’s insistence on extending ULEZ to the borders of London. We are very conscious of the need to continually look to improve air quality locally, and we take measures to do so, but our lack of transport connectivity—we are one of the few London boroughs without the Tube—makes us heavily reliant on the car. Many of our small businesses and trades men and women depend on vans. Many invested in the diesel vehicles they were told a decade ago were greener and cleaner but now face the ULEZ charge.
One of those measures is lobbying to improve public transport. You would hope that, when the opportunity arises, the mayor and TfL would seek to help, but in neither of the recent proposals for the Superloop or the DLR extension to Thamesmead did they even identify the need to improve the transport infrastructure in our part of the borough.
We have some of the poorest wards in London, and the residents in those wards are more likely to be those with non-compliant cars. Those cars are vitally important to allow residents to fulfil their employment, as well as look after their families. Cars, some on finance arrangements, have become worthless overnight. I have heard of many people taking out loans to replace them, the scrappage scheme not being relevant, or indeed having to revert to leasing rather than owning a car to allow them to get about.
In common with other outer-London boroughs, we also have a high number of older residents, and their cars give them independence to visit their family and friends, get their weekly shopping and attend medical appointments, among other things. How often do we all hear about people buying their last car? In the last few months, the communications I have received have included some revolving around people having to draw down their life savings to replace a car they had no intention of replacing.
The mayor’s expansion of ULEZ through outer London will impose fines on those who can least afford it. The stress of the imposition of this extension has not been good for the mental well-being of those who have been done unto. This is heartbreaking and devastating to so many people. Families have been split, unable to see each other; people are having to change jobs, including those unable to provide key front-line services because of the costs imposed by the mayor.
People are facing hardship and distress. When they voice their concerns, Mayor Khan, and his small band of allies, seek to insult and smear them, accusing them of being climate change deniers, Covid vaccine conspiracy theorists or the far right.
That brings me to the number of people being implicated—or the accuracy of the data that the mayor and TfL have been using. They said that nine out of 10 cars in the extended zone would be compliant. However, when challenged by organisations such as the AA and RAC, which obtained information from the DVLA under FoI, that number became known to be about 700,000 cars, and how the qualification of the nine out of 10 cars was collated became something of a farce. Likewise, I am sure noble Lords have all read the stories about Imperial College or a professor writing an article for the Lancet being asked to change their narrative as it did not support the extension.
Of course, there will be people who will not be able to change their vehicle. I am afraid that the mayor lives in a very different world from the one I live in if he thinks that £2,000 will buy a compliant car. That will include the key workers and tradesmen we are all dependent on. Is he not aware that in many instances, the cost of his fines will be passed on to others, thereby pushing up the prices of vital services or, indeed, will mean people choosing not to work in London? Likewise, we hear of the implications for voluntary organisations and charities, which are so important to our residents.
We are firm believers in democracy in Bexley. We put a manifesto before our electorate at every election, transposing it into our plans to ensure that we deliver the promises made, and we seek to represent our residents. Last May our manifesto included a commitment to oppose the ULEZ extension, and when we were re-elected, we started work to do what we said. That opposition from our residents and businesses was then repeated in the mayor’s own consultation—but, unlike us, he chose to ignore that message.
That is why this amendment is so important. Local councils understand the needs of their residents; we live the same lives as them, rather than being chauffeured around like the mayor—and, unlike the mayor, we believe in democracy. I support the amendment.
My Lords, I thank the noble Lord, Lord Moylan, for tabling Amendment 282N and the consequential amendments, and His Majesty’s Government for supporting them. Unlike my noble friend, I do want to talk about ULEZ, although I totally understand and appreciate the points that he made about the importance of local democracy.
Noble Lords will know how important the blue badge scheme is to many disabled people and their families—and indeed their personal assistants, where applicable. I declare an interest as someone who relies on my blue badge for parking in a whole range of places, including town centres.
What noble Lords may not know is how relevant—indeed, how crucial—these amendments are to protecting blue badge holders from disability discrimination. In fact, I only became aware of this thanks to the indefatigable efforts of the formidable disability rights campaigner, Kush Kanodia.
As I understand it, incredibly, blue badge holders who are not in receipt of certain benefits are not exempt from ULEZ charges—unlike in Glasgow, for example. So this is effectively a discriminatory penalty for disability—or, in the case of non-disabled family members or personal assistants who may use a blue badge to assist with transport, a fine for providing support to a disabled person. This is surely not right. Amendment 282N and the consequential amendments would allow this manifest wrong to be put right through this opting-out provision. I wholeheartedly support it.
My Lords, here we are on day seven of Report, and up pops yet another amendment on a completely new topic. It is so out of scope that, to debate it, the Long Title of the Bill has also to be amended.
The noble Lord, Lord Moylan, has chosen to discuss, via the theme of ULEZ, the London devolution deal. How much better if he had done so during the very long section of debate on the Bill devoted to devolution. The amendments that he has proposed have only a tenuous link with the prime purpose of this Bill: levelling up. If he wanted to truly level up in the areas of the country identified in the Government’s own White Paper, the amendments would focus on transport issues elsewhere in the country.
Those of us who live in the north, especially in west Yorkshire, can only dream of the quality of public transport available in London. For instance, the government commitment, repeated many times, simply to electrify the trans-Pennine route, has been dropped. The new trans-Pennine route, nationalised because of its previous failure, has the highest number of train cancellations of all train companies. Added to this appalling level of service comes the decision that the 13 new trainsets for the route are to be taken out of service for want of trained drivers. In addition to this very large dent in already creaking connectivity in the north is the increasingly poor service provided by bus companies, which results in growing numbers having to rely on private transport, thus increasing the already poor air quality in many northern urban areas.
How much more beneficial to promoting levelling up—the purpose of this Bill—if the noble Lord, Lord Moylan, had used his talent to direct government attention to levelling up connectivity, which is absolutely essential if areas defined in the levelling up White Paper are to enjoy growing investment and prosperity.
My Lords, I thank the noble Lord, Lord Lexden, for introducing this group and the amendment in the name of the noble Lord, Lord Northbrook, as well as for drawing our attention to the importance of standards. Clearly, most of the debate has been around the amendments in the name of the noble Lord, Lord Moylan. As we are on Report, I shall be brief and make just two points in response to the noble Lord’s amendments.
First, I point out that Sadiq Khan has explicitly ruled out the introduction of pay-per-mile charging while he is Mayor of London. Secondly, on Amendment 282N, which seems to be the core amendment within the four amendments introduced, our concern is that this includes a loophole for councils to opt out of such schemes. Introducing that loophole undermines the national objective of improving air quality. We think that it risks increasing public confusion and is not in the interests of preventive health and improving air quality.
My Lords, Amendment 242 in the name of the noble Lord, Lord Northbrook, introduced by my noble friend Lord Lexden, would require the Government to make all standards that relate to all planning Acts or local authority planning policy, online and free of charge.
As I think I said in Committee, our national standards body, the British Standards Institution or BSI, publishes around 3,000 standards annually. These standards are a product of over 1,000 expert committees. BSI is independent of government and governed by the rights and duties included in its royal charter. This includes the obligation to set up, sell and distribute standards of quality for goods, services and management systems. About 20% of the standards produced are to support the regulatory framework. This will include a minority of standards made to support planning legislation and local authority planning policy. To ensure the integrity of the system and to support the effective running of the standards-making process, the funding model relies on BSI charging customers for access to its standards. As a non-profit distributing body, BSI reinvests this income from sales in the standards development programme.
My noble friend Lord Lexden asked what the difference is between a regulation and a standard. A regulation provides minimum legal requirements, is written by government and is laid before Parliament. A standard is expert-led and derives its legitimacy through consensus and public consultation. A standard, however, can help demonstrate compliance with legislation. My noble friend also brought up the issue of access in Northern Ireland’s libraries. Interestingly enough, access to British standards is available free in public and university libraries across this country as well, including the British Library, Herefordshire County libraries and the National Library of Scotland. I hope that this provides sufficient reason for my noble friend Lord Lexden, on behalf of the noble Lord, Lord Northbrook, to withdraw the amendment.
I thank my noble friend Lord Moylan for tabling Amendments 282N, 302A, 315ZA and 317, to which I have added my name. He speaks with his characteristic eloquence about the challenges of introducing road user charging schemes in the capital. My noble friend’s experience in these matters is worth repeating. He is a former deputy leader of Kensington and Chelsea Council, a former deputy chairman of Transport for London and a former chairman of London Councils’ city-wide transport and environment committee. My noble friend therefore speaks with unrivalled experience and authority on matters of London’s governance.
My noble friend is entirely correct in his analysis of the differences between the mayoral model followed in London and the combined authority model followed elsewhere in England. He is right to draw attention to the resulting friction that can arise between London borough councils and the mayoralty in London. Regrettably, we have seen a clear display of this during the recent debates on the expansion of the ultra-low emission zones.
As the Government, through this Bill, look to widen and deepen the devolved powers of leaders outside the capital, it is right that we also take stock of how London’s devolution settlement is working in practice. To this end, the Government have committed, through their new English devolution accountability framework, published earlier this year, to review
“how current scrutiny and accountability arrangements in London are operating in practice”,
“how the Greater London Authority works and liaises with the London boroughs”.
In addition, the Levelling Up Advisory Council has been asked to examine the strengths and challenges of the capital’s devolution settlement, and a report on that is expected next year. In the meantime, my noble friend’s new clause on road user charging schemes in London provides a targeted, proportionate and wholly sensible correction to the current uneven distribution of power and decision-making between borough councils and the Greater London Authority when introducing ULEZ-style road user charging schemes across the capital. The amendment is entirely in keeping with the wider aims of the Bill to “empower local leaders” and to “enhance local democracy”. As such, I can confirm that, should my noble friend Lord Moylan wish to test the opinion of your Lordships’ House on this matter, he would have the Government’s support.
My Lords, how lucky my noble friend Lord Moylan was—he was garlanded with praise from the Front Bench.
On Amendment 242, I was extremely glad to hear from my noble friend that a number of libraries in Great Britain had the good sense to bring themselves into line with libraries in Northern Ireland, so that their users can have free online access to British standards. Where Northern Ireland has gone so successfully and pre-eminently, others now follow. That is extremely good news, so I shall not press the amendment.
We have already debated the amendment that follows. It is a modest amendment asking for local consultation purely in residential areas when a noisy business such as an all-night McDonald’s is to be placed among them. It seems entirely reasonable that local residents should be properly informed, so I ask my noble friend the Minister and her officials to reflect further on Amendment 243, which I shall not press. In the meantime, I beg leave to withdraw Amendment 242.
Amendment 242 withdrawn.
Amendments 243 to 245 not moved.
246: After Clause 128, insert the following new Clause—
“Compulsory purchase orders: duty of care(1) The Secretary of State must, by regulations made by statutory instrument, publish a duty of care which applies to acquiring authorities involved in compulsory purchase orders, within six months of the day on which this Act is passed.(2) The duty of care must involve, but is not limited to, obligations on the acquirer to—(a) only acquire the land they demonstrate is necessary,(b) mitigate the impact of the scheme on claimants,(c) pay for the land taken at date of entry or vesting, and(d) ensure that all communication with the claimant is conducted in accordance with the Government’s guidance on compulsory purchase orders.”Member's explanatory statement
This amendment will introduce a duty of care that considers the impacts on rural businesses when their land is acquired through compulsory purchase orders.
My Lords, I declare my interests in landownership as set out in the register.
Somewhat reluctantly, I am retabling the amendment from Committee stage, despite the very helpful response that I received from the Minister. Amendment 246, which I propose with the support of my noble friend Lord Lytton and the noble Earl, Lord Caithness, involves the Secretary of State establishing a statutory duty of care setting out the obligations of the acquiring authority in a compulsory purchase situation. That would strengthen the obligation of the acquirer to consider, and possibly reduce, the impact of a compulsory purchase proposal on the claimant, their property and their business. The intention is to safeguard owners against the excesses of the acquiring authorities, many of which are large companies or government bodies.
The Minister, in her response, pointed to the guidance that is already in place for acquiring authorities to treat claimants with respect by undertaking early negotiations to identify what measures can be taken to mitigate the proposed schemes’ impact on land- owners. However, although the guidance is there, it really needs strengthening due to the lack of resources at acquiring authority level to understand fully and implement that guidance. A duty of care resulting from a statutory instrument will give a greater level of protection to those under threat of compulsory purchase and ensure that the acquiring authority considers it as a matter of first priority.
I cannot emphasize enough the appalling experience that greets the property owner affected by compulsory purchase. Some lose their whole property, while many others lose only a proportion, but the whole property suffers from the impacts of construction, which may go on for many years or decades, with the owner having to maintain a viable business throughout that time.
The acquirers’ responsibility is to compensate the land or business owner for their loss, but this is nearly always paid after the land has been taken, in some cases many years thereafter. This delay only adds to the loss. Anyone who has been affected by HS2, which includes me, knows exactly what I mean.
Property owners who are affected by compulsory purchase feel that their interests are often ignored by acquirers keen to deliver the scheme together with any environmental mitigation but with little consideration for the person or business that occupies that land. The statutory duty of care to consider and mitigate the impact on landowners and businesses impacted by the scheme, on top of government guidance on compulsory purchase, would rebalance the interests of delivering the scheme and reduce the impact. It would not delay or prevent schemes and could assist them by avoiding legal battles on interpretation of the guidance. It would also ensure that impacts on property owners and businesses are considered as a key part of the scheme, rather than being an afterthought considered only when compensation is due sometime later.
I hope the Minister will accept that this is a constructive amendment, designed to take much of the aggravation out of compulsory purchase while enabling sensible schemes to progress with greater consideration of the interests and livelihood of the owner. I beg to move.
My Lords, I support the noble Lord, Lord Carrington, and am a signatory to this amendment. I commend him for his succinct explanation. I also have land interests and some professional familiarity with compulsory purchase.
I have very little to add, but I simply say that the use of CPO powers, and the number of bodies exercising them directly or indirectly, is expanding. It risks subsuming the interests of the individual owner from whom rights are being compulsorily wrested. Some acquiring bodies have overriding commercial objectives, possibly only indirectly aimed at the promotion of public best interest, and I think we should be aware of that. Moreover, many of the safeguards built into the processes when they were used by what I will call the traditional acquiring authorities—for instance, government agencies, local government and so on—seem no longer to be entirely honoured in spirit. That is very important, particularly as we have an expanded use of CPO powers.
The amendment is thus a natural, logical and necessary safeguard for owners who are subject to these powers. They would, inter alia, deal with the evils of entry and taking of land without concurrent payment of compensation. That arrangement leaves a claimant on the back foot in negotiations, prejudiced financially and reorganising their affairs. Failure to adhere to the principles behind this amendment suggests a material erosion of the protocols that are familiar to us under the Human Rights Act—for the reasonable enjoyment of a citizen’s property not to be deprived without due process and for the rules-based system. That is why I support this amendment.
My Lords, on this side we are sympathetic to the intent of the amendment from the noble Lord, Lord Carrington, although somewhat doubtful about the mechanism he has proposed. I think we all want people who are subject to compulsory purchase orders to be treated in a humane and certainly human rights-compliant way. We do not want to return to the days of Crichel Down and everything that emerged from that.
Nevertheless, I think the noble Lord, Lord Carrington, made it clear that he saw the fundamental problem being one of resources and a search for a less mechanistic way of enforcing compulsory purchase regulations. I would be interested to hear the Minister respond and, I hope, confirm that purchasing authorities will be given support to make sure that they take that process through speedily, particularly the payment of compensation, and in a timely fashion.
My Lords, I declare my interests as a former chartered surveyor. The current CPO guidance attempts to deal fairly with owners who are caught up in the process of having land acquired under compulsory purchase, but it remains a blunt instrument. This amendment requires the Government to provide a duty of care, which is an excellent proposal. It is also appropriate, as we heard from the noble Earl, Lord Lytton, that compensation under CPO is paid on transfer, as it is when any citizen in this country buys or sells any of their private property. I see no reason at all why it should not also be the case under compulsory purchase. I support the amendment.
My Lords, the powers introduced by this section amend and clarify powers and procedures for using compulsory purchase and have been extensively consulted on—unlike some other parts of the Bill. The LGA’s view is that the introduction of measures that would genuinely make the CPO process more efficient for councils is an encouraging step, as it has previously lobbied on the need to reduce the time taken to use the CPO, and it also believes that these changes will make the valuation of change in this context closer to a normal market transaction.
In fact, the LGA view is that the Bill could have gone further. It would also like to see the ability to tackle sites which have had planning permission for a long time but which have not been built out through stronger compulsory purchase powers, and the removal of the requirement for permission from the Secretary of State to proceed with a CPO, which would expedite the process for local authorities. Of course, the Secretary of State could always retain the right to call in in circumstances where it would be necessary to do so.
I listened carefully to the noble Lord, Lord Carrington, and the noble Earl, Lord Lytton, and I am sympathetic to the specific issues they raised, particularly the issue about prompt payment for purchases of land. Perhaps I have had an unusual experience of the CPO process but the conditions are already stringent, both in setting out the process for a site qualifying for a CPO and in the requirement for valuation of that site. Therefore, while I appreciate the thinking behind the amendment, it seems that there is already guidance in place—indeed, the amendment refers to it. I look forward to the Minister’s response.
My Lords, Amendment 246, tabled by the noble Lord, Lord Carrington, would place a requirement on the Government to publish by regulations a new duty of care for all acquiring authorities undertaking compulsory purchase. The proposed duty of care would involve obligations on acquiring authorities to acquire only land necessary for their schemes and to mitigate the impacts of their schemes, as well as to pay compensation to landowners at the date of entry or date of vesting and ensure that all communication with claimants is conducted in accordance with government guidance. I reassure noble Lords that the Government understand the concerns behind this amendment. However, the Government consider the proposed duty of care to be unnecessary for the following reasons.
First, whatever the underlying scheme, a guiding principle of compulsory purchase is that acquiring authorities should include within the boundary of a CPO only land which is required to facilitate the scheme. It is for acquiring authorities to demonstrate that there is justification and a compelling case to support the inclusion of land within a CPO boundary. Where they cannot, a CPO is likely to fail.
Secondly, another principle is that the use of a CPO is lawful only providing that acquiring authorities compensate landowners for the loss of their interests, whether the land is acquired following notice to treat or is vested in the acquiring authority. Where an acquiring authority takes possession of land before compensation has been agreed, it is obliged to make an advance payment of compensation to the landowner if requested.
Thirdly, government guidance outlines that a benefit of acquiring authorities undertaking early negotiations with landowners is identifying what measures can be taken to mitigate the impacts of their scheme. Where this is not done, the CPO is again at risk of failing. It also requires that when making and confirming a CPO, both acquiring and authorising authorities should be sure that the purposes for which the CPO is made justify interfering with the human rights of those with an interest in the land affected.
Fourthly, while government guidance on compulsory purchase is not statutory, the Government will update their compulsory purchase guidance to promote the benefits of early, effective engagement and communication in the CPO process for ensuring fairness between the different parties to a CPO. The Government’s intention is to publish updated guidance on compulsory purchase alongside the coming into force of the relevant compulsory purchase reforms in the Bill, and they are committed to promoting best practice on communicating with landlords and reflecting this in published guidance.
This amendment would add duplication and complexity to the CPO process, which is contrary to the Government’s objectives. I trust I have given the House reassurance that Amendment 246 is unnecessary and that the noble Lord, Lord Carrington, is able to withdraw it.
I am delighted to receive that response from the Minister. I thank everybody who has taken part in this debate for the general support that I appear to have received from everybody who has spoken. It all comes down to the guidance and the enforcement of that guidance, and it is particularly welcome to hear that the update is currently under way. I think we will all look forward to seeing how that pans out. I beg leave to withdraw the amendment.
Amendment 246 withdrawn.
Amendment 246A not moved.
Clause 158: Nutrient pollution standards to apply to certain sewage disposal works
247: Clause 158, page 184, line 21, at end insert—
“(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) A sewerage undertaker may not publish a plan under subsection (1)(c) before a draft of the plan has been approved by the Water Services Regulation Authority and the Environment Agency.(1B) 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 13 of the Levelling-up and Regeneration Act 2023 on receipt of such advice.(1C) The Environment Agency may exercise its functions under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 2015/810) if compliance and investment plan monitoring suggests that the pollution standard will not be met.”Member's explanatory statement
This amendment will require sewage undertakers to secure OFWAT & Environment Agency approval for plans for upgrading plants in sensitive catchment areas, including plans to prioritise use of nature-based solutions to reduce nutrient pollution, thereby unlocking wider environmental benefits. The amendment also requires water companies to provide annual reports on progress towards meeting those plans, with failures to deliver plans on time leading to financial penalties.
My Lords, at an earlier stage of the Bill, I made the case, with others, for amending Clause 158, which concerns the statutory requirement for water companies to upgrade sewage plants to meet new nutrient standards in the areas worst affected by pollution. We welcomed this, but although it was seen as a good step forwards for improving water quality, frustratingly, it specified only that such upgrades should take place at the sewage disposal works themselves, usually meaning traditional engineering systems and solutions, which in themselves relied on concrete materials. Amendment 247, tabled in my name and with the support of the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, was therefore designed to enable effective use of restored habitats, known in this context as nature-based solutions, by water companies to also meet those standards.
As we pointed out in Committee, those nature-based alternatives can be a really effective and very cheap approach to soaking up nutrient loads and reducing the pollution reaching rivers, as well as providing excellent habitats for biodiversity. Our amendment also had strong support from water companies and Ofwat, but in Committee, the Government’s argument against it was the suggestion that it could somehow let water companies off the hook by allowing them to use such nature-based measures to fudge the delivery of their upgrades. We have therefore brought back this tweaked amendment, in which we have added an explicit requirement for water companies to secure agreement for compliance and investment plans from Ofwat and the Environment Agency before commencing their updates—so we are putting a fail safe in there. We have also included in the amendment the ability for the Environment Agency to impose monetary penalties on water companies for failing to deliver on the compliance and investment plans.
Over the summer, concessions in this area were tabled by the Government, which I really welcome. Those amendments are really positive in principle. However—this is a very big “however”—I fear that Amendment 247 may become very insignificant for the environment if the other government amendments recently introduced into this group are passed. I will therefore briefly speak to those as well. As I am a scientist, I will address the amendments from a scientific perspective rather than addressing their constitutional and legal aspects. In particular, I want to focus on Amendment 247YYA, which amends the habitats regulations to remove controls on nutrient loads in rivers for those that are associated with housing developments.
The amendments are based on the premise that the extra nutrient loading in areas where the relevant houses will be built will be less than 1% of the loading of the existing housing stock. This is where a key piece of evidence is missing: what is the loading of the existing housing stock? The Home Builders Federation would like us to believe that houses contribute 5% of excess nutrient loads in rivers in England compared with 50% from agricultural activities, so it is all the problem of farmers and not of housebuilders.
I quote from the Home Builders Federation:
“It is estimated that all existing development, including residential, commercial and the rest of the built environment, contributes less than 5% towards the phosphate and nitrate loads in our rivers—meaning the occupants of any new homes built would make a negligible difference”.
But the evidence base is, very strangely, lacking: where does that 5% come from? Searching for it leads me to believe that the figure has been extrapolated from a 2014 Defra report, The Impact of Agriculture on the Water Environment: summary of evidence, which was used to inform the 25-year environment plan. The first thing to note is that this report has since been updated by Defra, and the most recent statistics stand as follows:
“Agriculture is the dominant source of nitrate in water (about 70% of total inputs), with sewage effluent a secondary contributor (25-30%)”—
I also looked at other data that could support this level of 5% from the built environment, so I did a search of academic studies that had been published in the peer-reviewed literature in the past three years in similar climatic regions across the world to look at the percentage source of pollution in river catchments that contain a mix of agriculture and urban development. I could not find a single example that suggested a value as low as 5% of the nutrients in rivers coming from housing. One found that, in a large catchment containing seven rivers, 14% of nutrients were from wastewater from residential buildings; in another, it was 33%, and 28% in another. All were significantly higher than the 5% that we have been told is the likely impact. For the UK, a recent assessment by Greenshank Environmental also indicates a far higher nutrient load in rivers from housing, closer to 36%. I therefore urge other noble Lords not to take this 5% figure too seriously.
Worse than this, if Amendment 247YYA goes through, we will never know the true value, since the amendment instructs planning authorities to assume no increase in pollution, prevents them requesting an assessment to investigate pollution further and even goes as far as to instruct authorities to ignore any evidence of potential adverse impacts; for example, as provided by scientific studies or even NGOs. It simply cannot be acceptable to amend one of our key environmental protections like this.
These amendments also fly in the face of the environment statement on the Bill, which says:
“The Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
That does not seem to be the case. The Government’s own adviser, and the chair of the Office for Environmental Protection, made this point in a letter to the Government last week.
In conclusion, I will not be supporting these later government amendments. I urge other noble Lords to do the same, not least because in this country we are already dealing with extremely polluted rivers. In February this year, the Environment Agency reported that only 14% of our rivers are classified as being in a good ecological status. It also stated that, without new interventions, this figure will drop to just 6% by 2027. I beg to move.
My Lords, with the leave of the House, and to assist noble Lords participating in this debate, I will speak to the government amendments in this group. I will of course address the amendments tabled by noble Lords and the wider debate in my closing remarks.
All the amendments in my name address the major issue of nutrient neutrality, which has effectively stalled or blocked completely housing development in affected areas. For procedural reasons, and agreed in the usual channels, I will treat the tailing amendments—Amendments 247YE and 247YX—as de-grouped.
This issue is hampering local economies, depriving communities of much needed housing and threatening to put the SME builders out of business. Nutrients entering our rivers is a real and serious problem, but the contribution made by new homes is very small compared with that from sources such as industry, agriculture and our existing housing stock. Government Amendments 247A to 247YW cover a range of improvements to our current approach to improving wastewater treatment. These amendments respond to comments and concerns of noble Lords in Committee about more nature-based and catchment-based approaches. I hope they will be welcomed.
I now turn to Amendment 247YYA, mentioned by the noble Baroness, Lady Willis of Summertown, which would require a competent authority to make a reasonable assumption for relevant developments that nutrients from that development will not adversely affect the integrity of the site. The assumption we are asking competent authorities to make is reasonable for two reasons. First, this assumption is limited to the development where the wastewater is treated by a wastewater treatment works or private treatment system regulated under the environmental permitting regulations. This means that nutrient loads in wastewater will remain strictly controlled through the environmental permitting regime, which places legally binding duties on water companies, and through the regulators of the water industry, which are subject to the requirements of the habitats regulations. Secondly, the mitigations that we are putting in place will ensure that there are no additional nutrient loads from residential development.
If we are to take these reasonable steps, we need to amend the habitats regulations in the way our amendments set out. This is a carefully targeted and specific change, aimed only at addressing a disproportionate application of the regulations since the Dutch nitrogen case in the European Court of Justice. Following the findings in this case, since March 2022 housing development in affected catchments has been stalled or blocked—even though new housing contributes such a small proportion of pollution.
In these areas, following the guidance that Natural England was required to issue, development may not be consented unless and until, case by case, house by house, mitigation is in place. This applies even though the additional pollution we are talking about—the additional nitrate and phosphate which remains in the water after domestic sewage is treated—will not get anywhere near the waterways unless the houses not only have planning permission but have been built and occupied.
New development is stalling at the point of planning permission, or even, in many cases, after permission has been granted. It is an absurd situation that is undermining local economies, costing jobs, threatening to put small developers out of business and, above all, leaving communities without the homes that they want and need.
This is not to say that the problem of nutrient pollution in our rivers is unimportant—it very much is—but developers and local planning authorities are bound up in a burdensome and expensive process that does nothing to give certainty to anyone, creating huge opportunity costs. In some catchment areas, hard work by Natural England, environmental groups and developers has started to allow some housing to be consented. However, having listened to the concerns of local communities, local authorities and housebuilders, it is clear that these schemes are moving too slowly, with no guarantee that demand can be met imminently.
In short, our habitat protections are rightly prized, but in this case they are focusing huge effort on a very small part of the problem and distracting from the root causes of nutrient pollution. Therefore, in parallel to the amendments we propose, the Government have set out an ambitious plan for nature recovery. We are, through existing provisions in the Bill, obliging water companies to upgrade wastewater treatment works in designated catchments by 1 April 2030. These provisions alone will outweigh the nutrients expected from the new housing developments by putting in place wider upgrades for the long term and will benefit existing houses, not just new ones.
We are providing Natural England with £280 million to expand and evolve its existing nutrient mitigation scheme. Natural England’s own judgment is that this is sufficient funding to compensate for any additional nutrient flows from up to 100,000 homes between now and 2030.
We will work with Natural England to develop what are known as protected site strategies—plans drawn up in partnership with local communities that will chart a course to full restoration of the most affected habitat sites in catchments where demand for housing is highest. These will further be underpinned by action to address the real sources of nutrient pollution: conducting at least 4,000 farm inspections each year to make sure that slurry and other pollutants are handled in the right way; investing £200 million in grants for improved slurry storage and equipment; and devoting £25 million to farming innovation in nutrient management and making sure our farmers get the best out of new technologies. All these measures will play their part in ensuring the Government meet their legally binding target to reduce nitrogen, phosphorus and sediment pollution from agriculture into the water environment by at least 40% by 2038, with the interim target of a 10% reduction by 31 January 2028, and a more stretching 15% in the relevant catchments.
Before I conclude, I turn to Amendments 247YX and 247YY, which provide for delegated powers in support of the principal provisions. With your Lordships’ leave, I will also speak to Amendment 247YYZB from the noble and learned Lord, Lord Hope. I am grateful to the Delegated Powers Committee for its comments on these powers and take seriously its considerations. I wrote to the committee earlier today.
It remains the Government’s position that the powers we are taking are necessary and proportionate. While the power provided for under these amendments is couched in broad terms, this is as a consequence of the complexity of the existing law—complexity acknowledged by the Delegated Powers Committee. However, I wish to make it clear that the Government will use these delegated powers sparingly, and only to avoid unforeseen confusions or contradictions that may arise. There is also a sunset clause, which ensures the powers will fall away in 2030, which should allow sufficient time to ensure that the statute book is operating as intended.
The Government have also reflected on some of the points made in recent days and agree that there would be benefit in providing for consultation prior to the use of these powers, as well as ensuring that the vires do not extend beyond what is strictly necessary. We therefore intend to accept Amendment 247YYZB in the name of the noble and learned Lord, Lord Hope of Craighead.
I wish to end by noting, for the benefit of noble Lords, the views of both developers and local authorities on the Government’s approach. The Home Builders Federation noted:
“With some areas having been blighted for 4 years, the prospect of a swift resolution will be much-needed good news for companies on the verge of going out of business”,
while the District Councils’ Network noted that
“It will unblock tens of thousands of much needed new and affordable homes for more than 40 of our member councils”.
This is why the Government have decided to act. It is why this debate matters so much. I hope my explanation has been an assistance to noble Lords in considering these amendments.
My Lords, I declare my interests as may be relevant to this debate. I will speak in a minute to my Amendments 247YYAA, 247YYAB, and 247YYAC, but I must start by asking the Minister—I remain surprised by this—why she has, on Report, tabled such a large number of amendments that seek to reverse previous government policy on nutrient neutrality.
As the Office for Environmental Protection, set up by the Government in the Environment Act 2021, has stated—and I quote from Dame Glenys Stacey’s letter of 30 August—
“The proposed changes would demonstrably reduce the level of environmental protection provided for in existing environmental law. They are a regression”.
After a further exchange of letters with the Defra Secretary of State and a meeting, Dame Glenys wrote a second letter on 1 September. Again, I quote:
“What is certain is that the proposed amendments would amount to regression in law”.
She goes on to say:
“This is contrary to statements made in each House of Parliament on behalf of the Government”.
I have quoted from the Office for Environmental Protection to show that this is not in any way a political attack on the Government’s policy. The Office for Environmental Protection is the public body set up to protect and improve the environment by holding government to account. Ministers must therefore understand that any opposition to these amendments comes only from a desire by Members of this House, on all sides, to protect and improve the environment.
We all recognise the need to build more houses, and where possible to remove obstacles to achieving this, but surely none of us wishes this to be achieved at the expense of further damage to the environment. Ministers say this is fully mitigated, but that is not clear in the amendments. More houses create more sewage, and therefore there must be mitigation. But the Government appear to be relieving housebuilders from the cost of this mitigation and passing it to the taxpayer.
The announcement of additional money for Natural England is very welcome, but surely there must be a continuing requirement for housebuilders to contribute financially to mitigation. The Minister, in her letter to Peers on 29 August, said:
“The Government intends to work with the house building industry to ensure that larger developers make an appropriate and fair contribution to this scheme over the coming years”.
I must respectfully say to the Minister that that is not enough. There must be a legal requirement for housebuilders to contribute in each case to protecting the environment from further pollution created by new houses.
I now turn to the three amendments in my name. I am grateful to the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, and the noble Lord, Lord Randall of Uxbridge, for adding their names. I know also that the noble Baroness, Lady Altmann, had wanted to sign but was pipped at the post by the noble Lord, Lord Randall. Noble Lords will therefore understand that these are cross-party amendments with no party-political motivation.
For the benefit of noble Lords who have not been able—or inclined—to get into the detail of this large group of late-in-the-day government amendments, I must quote from them. In government Amendment 247YYA, in new Regulation 85A(2)—inserted by paragraph 11 of part 2 of new Schedule 13—it reads:
“When making the relevant decision, the competent authority must assume that nutrients in urban waste water … will not adversely affect the relevant site”.
I am surprised that any Minister from any department—or any party—could propose to Parliament such a paragraph. It is instructing a planning authority to disregard the facts. By any definition, that would be bad law. In paragraph (3) of new Regulation 85A, which I also seek to delete, the Bill instructs the planning authority not even to assess any possible pollution and, in paragraph (4), the planning authority is again instructed to disregard any assessment made by third parties, even the appropriate nature conservation body. I hope that all noble Lords will agree with me that this is just too far.
Here, I must thank the noble Lord, Lord Benyon, the noble Earl, Lord Howe, and the noble Baroness, Lady Scott, for various meetings in the last few days. I also received at 7 pm yesterday a long letter from the noble Lord, Lord Benyon. Ministers argue that all the government amendments in this group are a package and that we should not look at individual clauses in isolation. I regret that I do not accept that argument. I believe that the duty of this House is to improve and then approve clear and coherent legislation. The government amendments are defective in wording and contrary to science in intention. I cannot believe that any noble Lord of whatever party could vote in favour of such proposed legislation.
My Lords, I speak to this group of amendments, which come under the broad heading of nutrient neutrality. I declare my interest as a member of your Lordships’ Built Environment Committee, under the distinguished chairmanship of the noble Lord, Lord Moylan. The committee will release a report next week on the impact of environmental regulations on development. As our report is still under wraps, I cannot quote from it, but it provides important insights into the issues before us regarding nutrient neutrality, and my comments today will not, I think, clash with any of the committee’s findings.
I find it very hard to take a different perspective from that of my noble friend the Duke of Wellington—in so doing, I think I may be in a somewhat small minority—but government action of some sort has to be taken to address the mess we are in with nutrient neutrality. Out of the blue came the advice to local planning authorities that unless impossibly onerous mitigations were put instantly into effect, all housebuilding should be banned in the designated catchment areas where rivers were being polluted—advice that local planning authorities could not ignore without the risk of expensive judicial reviews. This moratorium was sprung on local authorities and the private and social housing developers with immediate effect without being phased in over time, without consultation and apparently against the advice of the Government’s own statutory advisers.
Yet, no one is claiming that new housebuilding is the main cause of the problem of river pollution. It accounts for a modest proportion, and here we get into some technical arguments. We had heard in the committee that less than 5% of the problem was attributable to new homebuilding but today the noble Baroness, Lady Willis of Summertown, called that figure into question. With her expertise, I feel sure that she is right. That makes the case for greater mitigation measures than have been proposed to date. I wish we had heard her evidence in our committee proceedings.
Nevertheless, whatever the figure, housebuilding is not the main culprit here. The big culprits are, first, intensive farming—poultry farms, fish farms and pig farms—and secondly, the water companies, which have not done what they should have done for years. But the penalty unfairly falls squarely on those building new homes who, in all other respects, satisfy planning conditions and meet environmental regulations.
The Government talk in terms of the current moratorium meaning 100,000 homes not being able to proceed in the years ahead. The housebuilders, whose figures I am now more doubtful of than perhaps before, told the Built Environment Committee that the moratorium risks the loss of 41,000 homes for each year the ban is in place. I know that many people welcome the demise of any housing development—and the performance of some housebuilders on quality, affordability, design and more leaves a great deal to be desired—but like it or not, we must ensure that there are enough homes to go round while also tackling those failings.
We have a lot of catching up to do. The Centre for Cities and the IFS have pointed out that we would have another 4.3 million homes if we had matched the housebuilding of the average European country. Already we are going to miss the widely accepted target of 300,000 homes a year for a series of other reasons, and now the nutrient neutrality moratorium is setting us back even further. Some 20% to 30% of the tens of thousands of homes lost in this moratorium comprise affordable housing that is so badly needed. Local SME builders in an affected area cannot go elsewhere and jobs and businesses are lost. Remember that new developments will now bring with them 10% or more biodiversity net gain, making new homes a net contributor in the future to environmental goals.
Something must certainly be done to remove this arbitrary, damaging and unfair housing ban. The Government’s proposals effectively take nutrient neutrality out of the consideration of planners altogether and provide some extra funds for mitigation, but it is a pretty crude approach. A long-term solution has to address the intensive farming issues and get on top of the water company failures. A more considered and comprehensive policy change with clear guidance for planners and practitioners needs to set nutrient neutrality alongside water neutrality and all the other nature recovery measures. If this is what the Government intend—and these government amendments today represent a very short-term pause while a more serious policy response is consulted on and worked out—then maybe it is a necessary stopgap. But we certainly should not be in this position and I hope the Built Environment Committee’s report will contribute to a fairer long-term, comprehensive approach that reconciles the need for vital environmental improvements with equally important efforts to tackle acute housing shortages.
My Lords, I declare an interest as a member of the South Downs National Park Authority, which is a major planning authority. I am speaking to Amendment 247, to which I have added my name, and the three amendments in the name of the noble Duke, the Duke of Wellington, to which I have also added my name.
The noble Baroness, Lady Willis, has set out with great clarity the rather modest intention of our original Amendment 247, which was to underpin the delivery of nutrient neutrality measures, which are necessary to halt the catastrophic damage to some of our most protected wetland sites. Since then, of course, the Government have tabled a raft of amendments that would have the opposite effect to that which we were seeking to achieve in our original amendment. That Government package goes against many of the fundamental principles of environmental protection to which we agreed during our consideration of the Environment Act.
We have heard reference to the letters from the chair of the Office for Environmental Protection, Glenys Stacey, who has made it clear that the government amendments amount to a regression in law. In the meeting that the noble Baroness, Lady Scott, had with Peers this week, she said that that judgment by the OEP was wrong as it had not considered all the factors. That is a serious allegation to make, and I would be grateful if the Minister could update the House on how these differences of opinion between the Government and the independent regulator, the OEP, are being addressed.
Our Amendments 247YYAA, 247YYAB and 247YYAC address the heart of our concerns about the Government’s proposals. First, as the noble Duke, the Duke of Wellington, has said, they place an intolerable requirement on public bodies to ignore the evidence of water pollution in plain sight and pretend that it does not exist. In fact, I am surprised that these late amendments were not sent back to the lawyers due to defective drafting; as has been said, they now require public bodies to look both ways at once, facing different requirements in different legislation. As Matthew Parris said in his recent Times article, under the government proposals,
“when considering an application to build, the authorities must assume that what poisons rivers does not poison rivers”.
This is madness. Planning authorities currently have a responsibility to take all material considerations into account, including the need for more housing and for environmental protections. The government proposals will undermine our evidence-based planning system and set a dangerous precedent.
Secondly, it is being argued that these measures are necessary to unlock housebuilding. I listened to the noble Lord, Lord Best, and normally I agree with him on so much, but I felt that his contribution was rather intemperate and had obviously been swayed by some of the so-called evidence given to his committee. I wish that, as he said, the committee had heard evidence from the noble Baroness, Lady Willis, before it made its decisions on this issue, because delays in securing planning permission are not the biggest barrier—it is the inability of developers to build out schemes that have already been approved. We all know the statistics about how much is already in train but has not been developed.
The further uncertainty caused by the government amendments may mean that fewer houses, not more, will be built. Because the legislation is not retrospective, there will be tens of thousands of homes across the country for which consent has already been given, with nutrient provisions in place, but on which the developers have not yet begun. So planning departments will need to enforce the nutrient provisions in relation to those consented developments, leading to a two-tier system that will last for many years.
Thirdly, as Natural England has confirmed, it is perfectly possible to address the balance between the habitat regulations and housebuilders through non-legislative means. There are already a number of well-established schemes that do this, adopting a more strategic approach to the nutrient migration scheme. The Government and the noble Lord, Lord Best, have suggested that everything has come to a halt. This is simply not the case. Housebuilding is still happening, and people are working with Natural England to make sure it is being done in an environmentally sensitive way.
Finally, these proposals will be a major blow to the rollout of the green finance system, which is necessary to support nature recovery. For example, in the South Downs we estimate that we have about 4,000 hectares of nutrient neutrality offset land in the Test, Itchen and Solent catchment areas alone. That represents around £400 million of potential income to landowners and farmers to support economic opportunities and help with the agricultural transition, while also supporting nature recovery.
Without nutrient neutrality offsetting, the Government have no hope of reaching their private finance targets in the environmental improvement plan of £500 million every year by 2027—so it is a lose-lose situation. I urge noble Lords to reject these ill thought out plans and find a consensual way to deliver a housebuilding programme that enhances, rather than wrecks, our water quality.
My Lords, I am grateful to speak, in part in my capacity as chairman of your Lordships’ Built Environment Select Committee, to which the noble Lord, Lord Best, referred. I should explain that we have, perhaps coincidentally, spent the last six months taking evidence—not “so-called evidence” but actual evidence—on precisely this topic. The subject of our inquiry has been the interaction between environmental regulations and development. Inevitably, the question of nutrient neutrality has occupied an important place, because it is so important and live. The noble Lord, Lord Best, has explained that the report is not yet published; it is practically at the printer, and we hope it will appear next week, so we are not in a position today to quote from it. However, I see a number of members of the committee in the Chamber and I hope that they will speak, because we have been very struck by what we have found.
A great deal of what we found was explained by the noble Lord, Lord Best, and I do not propose to repeat all of that. I will speak more briefly, but I would like to draw attention to one conclusion we reached without any dissent. When new environmental legislation is introduced, which is well thought out, consulted on and given adequate time for implementation, it is normally absorbed, adopted and implemented by the housebuilding industry with no disruption or difficulty. That is the right way for us to make environmental legislation; it is what we normally do. However, in this case, that is not what has happened at all.
The root of the problem is a European Court of Justice decision in 2018 in a case related to Dutch farming—which, as we all know, is probably the most intense farming in the world—and the consequences it had in the Netherlands for run-off into watercourses. That judgment created a more restrictive interpretation of existing habitat regulations than had been agreed and understood before. Because we were still part of the European Union—I shall not go into the European consequences of this—Natural England rightly understood that this judgment had an effect in England as well. So it took legal advice on what consequences it had.
It then went off and discussed it with Defra, and Defra look legal advice. I have not seen that advice, but it appears to have concurred with the advice obtained by Natural England. Our committee still does not quite understand why Defra insisted at that stage that nobody should be allowed to discuss this, and that it all had to be kept very secret between Defra and Natural England. The result was that when it announced the consequences of that new decision, as it understood them, there was no warning whatever. There was none of the normal consensus, building of consultation, buying in, or time for implementation. All of a sudden, it appeared in a number of catchment areas covering, I believe, approximately 14% of the land area of England. It is absolutely true that it has not stopped housebuilding in every part of England but, in effect, overnight there was a moratorium in roughly 14% of the land area of England even on the completion of sites that already had planning permission. This is utterly disruptive and completely unplanned and, in my view, evidence and argument for treating this particular circumstance as a special case. The Government need to take steps to sort this out, untangle ourselves and make a plan that allows us to deliver all our housebuilding and environmental objectives over time.
That is why I support this package. It does involve a few optical devices, but they achieve the effect. It effectively says that you can carry on building housing that we desperately need—local housing, affordable housing and student accommodation, which are all caught by the ban—but there will also be additional, mitigating measures. More money and bigger efforts will be put into addressing the pollution in our watercourses. That is the sort of balance we need to achieve if we are not to be paralysed completely. There is a strong reason for thinking of this as a special case.
Unlike the noble Baroness, Lady Willis, I have not extensively researched how big a contributor housebuilding is. I have simply looked it up on Google. There are 26.5 million dwellings in England and Wales. We build a number of new houses each year. The government target is 300,000, but we do not get close to this. We are very lucky if we hit 250,000—which is 1% of the existing stock. Even if all the nutrient problems in our watercourses came from housing, new housebuilding would still be a very small fraction of what we are discussing; it would be less than 1%. But we know that it does not all come from housing. A great deal of it comes from poor agricultural practice built up over years. It comes from piggeries and from chicken farms that are not properly managed. We know that it comes from sewage works that are inadequate for the combined flows of water and sewage they are expected to take. So, when you take that into account, it is not even 1%; it is a fraction of 1%. We just need to keep this in proportion and not be excessively hysterical about it.
As I said, it is a matter of great regret that this debate is taking place before the Select Committee report appears next week. I encourage noble Lords to read it when it appears. I think they will find a great deal of evidence in it that is relevant to what we are discussing today.
My Lords, we ought to remember that we are discussing the amendments that the Government have put before us, rather than a committee report that we have not got and which will, no doubt, be of great interest.
We have to recognise that there may well be an issue here that needs properly to be addressed. My concern is that this is not the way to address it. The noble Lord, Lord Moylan, suggested that when we deal with the environment, we should consider it very carefully, go out to consultation and make sure that what we are doing is right. None of that has happened here. The Government have put down a whole series of amendments to this Christmas tree of a Bill and some of us are suggesting that we should not do this—although, were they to come forward with something that met the particular problems in a way that was not so manifestly bad, I am sure we would be supportive.
I rather object to the fact that the newspapers say that I am a Conservative rebel. It is the Government who are the rebel here, because they are not being conservative over this. First, they are asking local authorities—I can hardly believe it—to disregard the facts. This is the kind of attitude that we see in the Republican Party in the United States, the people who do not believe in climate change, the anti-vaxxers, who say “Don’t look at the facts”. The second thing that local authorities are being asked to do is encourage ignorance: not only “Don’t look at the facts” but “Don’t look at any evidence or find any evidence—just do what the Government say should be done”.
The argument the Government have put forward is that we need this to build more houses. I was the Secretary of State responsible for that. I had a long history of dealing with the housebuilders, who tell us that this will increase the number of houses. The number of houses built has nothing to do with this at all—it is about whether the housebuilders think that that number will keep the price up at the level at which they have it. The housebuilders are not building the houses they have already got planning permission for in areas which are not in any way affected by this. We know that perfectly well. It is a canard, if I may use a foreign word, to suggest that this will have any effect on the number of houses. The number of houses in this country is not reaching 300,000 because the housebuilders have bought the land at a price which means that they can sell only at a level which is too elevated for the present time, with mortgages as they are. Let us not kid ourselves that, by voting against this, we will in some way reduce the number of houses, because we will not.
I find it extremely difficult when I am told that the housebuilders should not pay for the damage they do. Three arguments are used. First is the housemaid’s argument: it is only a very little bit—“It is only a very little baby”—and therefore we do not have to take it into account. As a former chairman of the Climate Change Committee, I have to say that that is the argument everybody uses every time you want to do anything—“It isn’t me”; “They are bigger than we are”; “Don’t do it in Britain because of China”; “Don’t do it because of the farmers”; “Don’t do it for anyone, but don’t ask me to pay for my pollution”.
Secondly, I thought that the Conservative Party was in favour of the polluter pays. Were my noble friend the Minister canvassing in the Mid Bedfordshire by-election at this moment, would she turn to an elector and say, “In future, housebuilders building in the Wye Valley or near the Monnow will not have to contribute for the cost and the damage they do, but you will through your taxes. You, the Mid Bedfordshire voter in the by-election, will now be asked to subsidise the housebuilders”? That is what these amendments are about—the subsidising of the housebuilders.
In the end, we could go even further. Why do we not have a Bill to say that housebuilders can ignore health and safety arrangements because then more housing would be built? Why do we not say that local authorities must not know what the health and safety laws are and must not investigate what they might be so that houses might be built?
This is one of the worst pieces of legislation I have ever seen, and I have been around a long time. It is entirely unconservative. If all this was so obvious so long ago, why was it not included in the Bill in the first place, or in some other Bill? As we have, in my view, some pretty peculiar legislation on ex-EU laws, why have the Government not used their powers therein?
I sat through debate after debate on how we were going to protect the British people instead of the court in Brussels and on how we would have proper protection against government mishandling of the environment. We were assured that Glenys Stacey and her department would be treated with all the respect that one would have expected. We were told that she would have all the powers necessary for the Government to take her seriously. What have they done? Two pathetic letters, and no statement—this is a judgment that you should make and we will change things because that is why you are there. That means that the British people are now less protected from government mistakes than any country in the rest of Europe. I make no comment about Brexit, but that is where this House and the other place have left the people of Britain.
I do not believe that the Government can do these things and not expect future generations to say, “If they could do that on this issue, what about other things?” They could say that local authorities can ignore this, that and the other and do not need the facts. Indeed, we do not have the facts here—there is no proof about these houses or any of this; it is an assertion by the Secretary of State.
I am not a Conservative rebel—I am a Conservative. Therefore, I am voting for the principle of the polluter pays, for facts and for knowledge, and I am not voting for ignorance and the disregard of facts.
The noble Lord, Lord Deben, is not an easy act to follow, but I shall try.
We were lied to in this House. Our Government promised us repeatedly that there would be no lessening of environmental protection at any time. They promised us that and they lied. As a result of Brexit, we are now almost unprotected. Loads of us knew at the time that they were lying.
I withdraw them.
We were told repeatedly during the passage of the Environment Bill that there would be no lowering of environmental standards in the post-Brexit legislation. That clearly has happened; environmental standards are down. I suppose that it was obvious, because the Government promised, but they refused to put it in that Bill; they absolutely refused, when we kept asking them. This is the same package of obfuscation as their refusal to guarantee post-Brexit workers’ rights or food standards—it is all part of the same thing.
I know that I am a bit cynical about this rotten Government, but even I would not have predicted that the Government would choose such a blatant act of environmental vandalism as these late amendments to the levelling up Bill. Our rivers and streams are already being pumped full of excrement on a daily basis, so why would Ministers feel that it was all right to pump any more in? How are they going to explain that when they pump it into the waterways of the Norfolk Broads or the Lake District?
The clear outcome from these amendments is that water pollution will be higher. The Government can argue as much as they like that the overall effect will be better because of mitigation but, to anyone who understands nature, that will be nonsense. The two most dangerous amendments are government Amendments 247YY and 247YYA. Amendment 247YY introduces a Henry VIII clause that allows the Government to revoke or amend any Act of Parliament or retained EU law concerning the “environment, planning or development” in relation to
“any effect of nutrient in water”,
and the way in which regulators take into account the effect of nutrients in water. Those are huge, far-reaching powers that will last for several years. There is no requirement in the amendment for these changes to be based on science or evidence; the Government will be able to force regulators to act against science and evidence.
The other dangerous amendment is government Amendment 247YYA, which forces authorities and regulators to assume that water pollution from proposed developments will not affect habitats, even when evidence proves that the water pollution will have a detrimental impact on habitats. So, the Government are forcing authorities to assume that water pollution will not affect habitats. This is complete and utter nonsense. They are banning authorities from requiring any assessment of the impact of water pollution on habitats and, worse still, the Government are forcing authorities to disregard the results of any evidence of the impact of water pollution on habitats, even when there is absolute proof that it will cause harm.
We cannot amend such bad law. I thank the noble Duke, the Duke of Wellington, for his role in this campaign, because his important amendments highlight the sheer absurdity of the Government’s proposal to force planning authorities to pretend that water pollution either does not exist or is not harmful. The Minister talks about more taxpayers’ money being put into mitigation measures as if it were a good thing, so the developers will be allowed to pollute and the taxpayer will be expected to cover the cost of the clean-up. People do not want to pay more in tax, and certainly not if it means more pollution—and certainly not if it means that housing developers can make bigger profits.
It is relevant that housing developers have put £60 million into Conservative Party coffers over the past decade. This policy is the payback by the Prime Minister on that investment. These donations, which account for around one-fifth of Conservative Party funding, had dried up at the beginning of the year; the developers had gone on strike and were refusing to hand over more money until the Government gave a big boost to their share price and dividend payments. I am not sorry to get in the way of such systemic corruption.
The best thing we can do with these government amendments is to reject them. The Government can bring forward fresh legislation if they want to insist on these, and that can be consulted on properly by local authorities and public bodies. They can have this debate as we all get ready for a general election and see how it goes down in a country where swimming in our rivers and on our coasts has become a dangerous sport. We can stop these dangerous government amendments—and we can do that by simply voting “not content”.
I shall speak to my amendment, Amendment YYZB, to which the Minister offered her support. It proposes two brief additions to the new clause proposed in Amendment 247YY, prompted out of concern about the wording of the clause we are being asked to approve.
I make it clear that this amendment is a probing one only. I very much regret—this follows a point made by the noble Lord, Lord Deben—that we are being asked to deal with this at such short notice at Report, particularly in view of the importance of the points raised by the noble Lords, Lord Best and Lord Moylan. This is a great misfortune, because we should really be dealing with this in the ordinary way in Committee, when we have the freedom to propose and discuss amendments and improve their wording stage by stage. We are faced with a measure produced at Report, and my amendment is an attempt to probe and draw attention to defects, not to cure a basic defect in the way the whole process is being handled.
My wording, and the points I have mentioned in my amendment, have been reinforced by what was said by the Delegated Powers and Regulatory Reform Committee in paragraph 9 of its report: that the power proposed to be given to the Secretary of State by this clause is
“subject to little by way of constraint”.
That is a generous understatement, I suggest. It is a broad, open Henry VIII clause. In its full vigour as it stands, it lacks any requirement for consultation or any indication of the criteria that must be satisfied in this highly sensitive subject.
There is one other aspect of this clause that I, as one who believes in the quality and integrity of the legislation we are asked to approve, find very disturbing. This is a very controversial subject that has been worked through already, as the noble Baroness, Lady Jones of Moulsecoomb, pointed out in her reference to the Environment Act. The question raised in my mind when I saw that we were dealing with the whole issue of nutrients in water was, “What does the Environment Act say about it?” There is no indication in the Government’s new clause that that Act has been given any thought at all.
Water is dealt with in Part 5 of that Act, and the powers of the Secretary of State in relation to water quality are set out in some detail in Section 89. We find here a set of carefully designed powers that are combined with requirements for consultation before they are exercised. They also take account of the fact that some of England’s rivers flow into or have their source in Wales or Scotland, so there is provision for consultation with the devolved authorities.
There are other safeguards in that Act as well. Section 20 provides for Ministers making Statements to Parliament about Bills making changes to environment law. We have not had that, because of the way this has been handled. Of course, Section 22 provides for the establishment of the Office for Environmental Protection, with important regulatory and reporting powers. What disturbs me—I may be mistaken—is that all this seems to have been ignored by the Government in formulating this new clause. It is as if the environment protections, which we spent so much time two years ago discussing in great detail, in an Act which the Government themselves promoted, did not exist. I think that many of us remember the satisfaction we felt when that Act was eventually passed, because we had done such detailed work on improving the Act in the interests of our environment. Yet apparently—and I stress the word “apparently”—it has been ignored.
My amendment seeks in a modest way to meet the point that the Delegated Powers and Regulatory Reform Committee makes in paragraph 11 of its report about the warning by the Office for Environmental Protection. There appears to have been no public consultation prior to the publication of these new measures. The first paragraph of my amendment would require regulations made under this clause to be consistent with what Section 89 of the Environment Act requires, and the second would require consultation.
However, this is a probing amendment, and I will not be moving it when the time comes. The first reason for that is that I support those who argue that this new clause should not form part of the Bill. It is not just a matter of small amendments; it is a much more fundamental objection, as others have made clear. The second is that, quite frankly, I am not confident that my amendment, with its mere reference to Section 89 of the Environment Act, is an accurate way of trying to reconcile the clause with what is in the Environment Act. It requires more careful study, and simply to accept my amendment as the Government propose to do is not the way to deal with it.
I do not suggest, and I never did, that I have the complete answer to this; I simply raise issues for the Government to consider. If the Government succeed in the vote that will take place, then I urge them to consider an amendment along these lines at Third Reading. However, if they bring back the legislation at some later stage, as the noble Baroness, Lady Jones, contemplated, then I very much hope that they will pay attention to the points that my amendment raised.
My Lords, in the spirit of brevity, I will not speak to the amendments to which I have given my name. However, I would like to address the amendments that the Government have brought forward, which, if accepted, will be a profound change in how we regulate for the environment in this country. To be clear, we are not talking about all water catchments or all houses. We are talking about the most environmentally sensitive sites: those which are home to our curlews, lapwings, and shelducks. These are our internationally and globally significant chalk streams—sites of greatest environmental sensitivity. That is what we are talking about, not the whole country and not all homes.
Here on these Benches, as on other Benches, we recognise the need for more homes. Like the noble Baroness, Lady Jones, I took slight exception to what was said by the noble Lord, Lord Best. The current situation around nutrient neutrality is not a ban on housebuilding. There is a system whereby, if you wish to build houses in a particular sensitive fresh-water area, you can do so if you buy credits to mitigate the damage you will cause. For example, in Poole harbour, one of our most magnificent sites for wildlife and wetland birds in this country, a proposal came forward to build homes. In 2021, a site of 420 acres was built in Bere Regis to mitigate the damage that would have been caused, and 2,111 homes were built. There is not a ban; there is a system of mitigation where the developers must pay—I will return to this point in a moment—to mitigate the environmental damage they are going to cause.
There may well be problems. It is a system that has been in existence for six years; all of us would accept that it is not perfect. Mitigation credits are not, perhaps, coming on as quickly as they need to. The guidance to local authorities about what is acceptable for mitigation may not be as clear as it needs to be. However, that does not mean that, at the 11th hour, the Government can suddenly throw in an amendment to a Bill. You collaborate; you consult with all the parties; you give adequate parliamentary scrutiny. Then, as the noble Lord, Lord Deben, said, I am sure Parliament would accept that.
We have heard a lot this afternoon already about a report which we are going to get from the Built Environment Committee. I will give you something from a report we have already had: the report of my committee, the Environment and Climate Change Committee, which has looked this year at how we will meet our 30 by 30 target, to protect our nature which is in such a dire state. We looked at the habitats regulations, which are what the government amendments will amend. We concluded, on a balance of the evidence, that those habitats regulations should be retained. However, we said that if they were going to be subject to amendment, because there were clearly some teething issues with this scheme, then any changes should not be
“subject to amendment without an appropriate degree of parliamentary scrutiny or where the protections afforded by the regulations are weakened”.
We can hardly call this process today an appropriate degree of parliamentary scrutiny. The Office for Environmental Protection has been clear: these government proposals will weaken regulations. Like the noble Lord, Lord Deben, I am distraught—I think that is the word I would choose—at how the Government have responded to the clear communication by the OEP, which was set up to be the watchdog for the environment in this country.
I have talked about why I think this process today is not the right one. However, there are other people who are being affected: not just local authorities, who are asked to live in an Alice in Wonderland world where, on this in particular, they must ignore the evidence. I want to talk about farmers, because many of us in this Chamber today were with the NFU this morning. It is Back British Farming Day. As BPS is being taken away from farmers, they have been told by this Government to find alternative sources of private income, to undertake environmental work and to keep their incomes up. If the current scheme is lost, whereby farmers bring forward mitigation offerings for which they get paid, then they lose another source of income at a time when BPS is going. To me, that seems wrong, when we must support British farming at this critical time as they move from BPS to the new system of environmental land management schemes—I think the whole House supports that, but we recognise that it will be a tricky time. These amendments will take that money away from farmers now.
Before I finish, I will make another point on polluter pays. I am in 100% agreement with what the noble Lord, Lord Deben, says on this. This is a Government which have backed the polluter pays. We sat through the Environment Act, and the Government have proposed that, in November, all Ministers will need to have due regard for the environmental principles policy statement. This gives six principles that Ministers must look at before they bring forward a policy; one of those is the impact of polluter pays. I wonder whether the reason why we have this here today is because it is September, and they did not want to consider something like this further down the line, when the EPPS and the obligation on Ministers to consider polluter pays—which the Government have signed up to—comes into effect.
I am not making a party-political point, but in many respects, what is being proposed here today is not a conservative approach. For many reasons, and certainly on these Benches, we will do all that we can to support affordable housing in the right places, and to support our environment, which desperately needs protection. We will try to vote down these retrograde amendments.
My Lords, I follow the noble Baroness in backing British farming, particularly today with the NFU hospitality earlier. On that note, farmers feel beleaguered, and I think that it is fair to say that upland farmers, where most livestock production takes place, are suffering at this time for the reasons the noble Baroness said. I welcome the words from my noble friend the Minister in presenting the government amendments. She recognises that farmers need help, particularly with slurry treatment and storage, and looking to innovation and new technology, which is very welcome indeed. I think that less welcome will be the 4,000 additional farm inspections, which I am sure will spook a number of farmers.
I take this opportunity to support the noble Baroness, Lady Willis of Summertown, on her Amendment 247. I shall listen very carefully to what my noble friend the Minister says in her response. It is absolutely right—and goes to the heart of the earlier amendment on SUDS—that we look more to natural flood defences. I repeat my interest as co-chair of the All-Party Parliamentary Water Group, and also as a chair of the experts who looked into a report commissioned by CIWEM, the Chartered Institution of Water and Environmental Management. I do not know how else to paraphrase this other than to say that I hope that taking lumps out of waste and using it as a resource to add value is something that the Government will take up in due course. In this whole debate, that will contribute to reducing the impact of sewage.
On the Dutch case, I do not know if it is generally known that in Holland and parts of the UK, such as East Anglia, nitrates appear more naturally in the soil. So if you are contributing to the soil through either farming or sewage, you are increasing the levels of sewage, nutrients and pollution in certain parts of the country. That is something that the Government must be aware of; they should seek to try to limit the damage caused in those ways.
I must ask my noble friend the Minister and others who are committed, as we all are, to the target of 300,000 houses a year why developers are fixated on three-bedroom, four-bedroom and five-bedroom houses. Inevitably, they will contribute three, four or five times more to the wastewater going into our water courses—sometimes with pollution. Why are we not looking to reduce that and, particularly in rural areas, satisfy the need for one-bedroom or two-bedroom houses to help first-time buyers and young people into the property market, as well as older people, including former farmers wishing to come off the land and live in a village or market town?
I congratulate the noble Baroness, Lady Willis of Summertown, on arguing her amendment so persuasively. I also support my noble friend the Duke of Wellington, with whom I worked in the European Parliament in a previous life, who spoke so powerfully to his amendments —but, as he is aware, they are not the entire solution.
I urge the Government to take their amendments away and work at them in more detail. That is for one simple reason, about which I will end on a note of caution. My noble friend the Duke of Wellington referred to the OEP’s previous letters, but on 12 September it reported on and identified possible failings to comply with existing environmental law in relation to the regulatory oversight of untreated sewage discharges. That relates to Defra, the Environment Agency and Ofwat. I urge my noble friend the Minister to pause the government amendments and not, potentially, break existing environmental law in the way that the Government are preparing to do with the amendments she has put before us.
My Lords, the Minister said, in introducing the amendments, that they were carefully targeted and specific. With great respect to her, she could scarcely have chosen less appropriate adjectives for the Henry VIII clause that she seeks to introduce through Amendment 247YY. It is astonishingly broad, even by modern standards, as my noble and learned friend Lord Hope said. To give the House a flavour, it allows the Secretary of State to make any provision that they consider “appropriate” about the operation of any relevant enactment connected to the effects of nutrients and water that could affect a habitat’s site. Relevant enactments include all Acts of Parliament, including the future one we are debating today.
I will add a few other points on that clause to those made by my noble and learned friend. The Delegated Powers Committee, under the chairmanship of the noble Lord, Lord McLoughlin, has stated that such broad Henry VIII powers must always be fully justified—all the more so, one might think, when they are introduced at the last moment without any public consultation or parliamentary scrutiny. The committee also said that inadequate justification for such exceptionally wide powers had been given and recommended, in terms, that this clause should not form part of the Bill.
The position has not improved since then. The explainer circulated on Monday had nothing to say about the clause at all, although I and others raised it with Ministers last week. In fairness, the Minister said that she had written to the committee today, but the letter did not appear on its website when I checked 10 minutes ago, and I have no reason to suppose that the committee has changed its mind.
We cannot get into the habit of passing clauses such as this one without the clearest and most compelling reasons for them. This clause may have been conceived as a fail-safe in hastily prepared legislation, but its effect is to abdicate the influence of Parliament altogether over substantial and important areas of policy. Why would we sign up to that? The Minister undertook that these delegated powers would be used sparingly, and I do not doubt her good intentions. However, with respect to her, no such undertaking can have any value when the clause will expire not in this Parliament or the next, but in the Parliament after that, on 31 March 2030. I see every reason to follow the recommendation of the Delegated Powers Committee and to vote against the addition of the amendment.
There is a practical, as well as a constitutional, reason why I propose to vote against the amendment. If those who wish to oppose the main amendment—Amendment 247YYA—are successful, they will also need to exclude this clause because, if we do not, the powers that it grants will be quite broad enough to allow the Government simply to reintroduce the substantive measures by secondary legislation, or indeed to do anything else that they might wish to do in this general area, without Parliament having the power to amend it or, in practice, to block it. As I said, that is true not only of this Government but of the next Government and the one after that.
I was relieved to hear that my noble and learned friend Lord Hope will not press his probing amendment, because, as he said, it is inadequate to meet the problems identified by the Delegated Powers Committee. Like him, I am not content with Amendment 247YY and, if it is put to a Division, I will vote to exclude it.
My Lords, I declare my interests in farming as set out in the register. I will add one or two comments to those made by the noble Baronesses, Lady Jones of Whitchurch, Lady Parminter and Lady McIntosh, on the progress made on nutrient neutrality, its effect on the farming community and the wish not to throw the baby out with the bath water.
It appears that the Government are concerned that the speed of the supply of mitigation options is holding up planning consents. Has the Minister considered the possibility of delaying the requirement for developers to have nutrient mitigation in place to a defined date after build, rather than before building commences, as is currently the case? This would ensure that existing processes and tools are kept in place and not wasted, and that those who have invested in mitigation schemes are not left with stranded assets—for example, many local planning authorities have purchased land and farmers have invested heavily in feasibility and planning works. In maintaining the emphasis on requiring developers to fund the measures, the essence is that the polluter must pay.
My Lords, briefly, I associate myself with the remarks made in a very fine speech by my noble friend Lord Deben. We entered the other place on the same day, in June 1970—I have been here continuously since, and my noble friend was briefly absent from the other place for a year or so. I think that we both feel exactly the same: a deep sense of shame that the Conservative Party should behave like this. I thought that I had got over feeling ashamed after the two last disastrous Conservative Prime Ministers. I have a great feeling of support for our present Prime Minister, but I am deeply saddened. It must be because he does not have the long parliamentary experience to see how Parliament should be treated by the Executive. This is no way to legislate.
On this extraordinary Bill, I pay genuine tribute to the stamina and energy of my noble friend the Minister. If anyone ever drew a short straw, she drew a whole packet full and got one free. She has behaved impeccably, but she has been landed with something that no Minister should be landed with: a Bill, at its very last stage, being added to in such a way without proper consultation or discussion.
This does not need to part of this Bill. If the Government believe there is a problem over house building and the environment, it can bring in another Bill in the King’s Speech that can have a proper Second Reading in the other place. It will not get scrutiny in the other place; Bills do not get it there these days. It could then go through all the necessary processes and be through before the end of the next parliamentary session.
This is just not right: a Christmas tree Bill effectively giving unlimited and unfettered powers to a future Secretary of State—not a Minister of State or an Under-Secretary—who will be able to do things without the full, proper approval of Parliament and who will have, effectively, an unfettered right to meddle and interfere, and all this just two years after the Environment Bill, one of the few Bills of this Parliament in which one could take any real degree of pride. That was, in no small measure, due to the noble Duke, the Duke of Wellington. His amendment went into the Bill, and we were all delighted that it did. This House improved that Bill. Now, with a series of late amendments, we are undoing the good that was done two years ago. This is something up with which we should not put.
My Lords, I have houses for rental on my farm in Norfolk and in London. Sadly, I have been caught up in the restrictions. In March 2022, I proposed to convert two redundant barns into houses, but my council wrote to me to say that Natural England was blocking all developments because of nutrient neutrality restrictions. Further, the council said that at the present time, there were no identified solutions available to resolve this impact, and that it might be a year before it is resolved. Here we are, 18 months later and Natural England is still blocking the developments without any solution for these restrictions.
Nutrient neutrality laws are certainly well intentional, but blocking new home building will have little material impact on improving the quality of water, as my noble friend Lord Moylan said. Our waterways and coastline are undeniably in a terrible condition, and the situation is not improving. If anything, it is getting worse with the inability of the water companies to treat water effectively. At the same time, we have an undeniable chronic housing affordability and supply disaster. We see the laws intended to protect against and treat pollution blocking thousands of desperately needed homes while the source of this pollution runs practically unchecked. The water companies can do what they like.
The wastewater from all my houses goes into my sewage treatment plant which is emptied regularly so that no mucky water can get down into the ditch and the rivers. In addition, we have a second reserve tank for any runoff, just in case. How many more months or years do we have to wait until we have a solution? Or is Natural England going to just say, “Sorry, you can’t build at all”? I support the government amendments.
My Lords, I had not intended to speak in this debate. However, on Monday evening I went along to the very helpful briefing session hosted by the Minister. I thank her for that session. Two points arose that particularly stuck with me and caused me to say something this evening.
The first relates to the Office for Environmental Protection, which we have heard about from numerous previous speakers. When the Minister was asked why the OEP thinks this proposal will reduce environmental protection, the reply came that the OEP had not considered the matter in the round. While it is true that building extra homes adds a certain amount of pollution to water, and we can debate what percentage, this proposal says that to offset that there are mitigation measures. That is indeed what the Secretary of State for Environment, Food and Rural Affairs said in her reply to Dame Glenys Stacey.
I thought it was odd that the OEP had not considered the matter in the round, so immediately after the meeting on Monday, I emailed Dame Glenys Stacey to ask her whether indeed the OEP had neglected to consider the mitigation side. As it happened, Dame Glenys was away, but Natalie Prosser, the chief executive replied immediately and said that it was not true. In fact she said that, in line with its correspondence, it has considered the matter in the round. So I ask the Minister to take this opportunity to correct what she said to us in the briefing meeting on Monday evening.
My second point—which has also been referred to by many previous speakers including the noble Lord, Lord Deben, in most eloquent terms—is about facts and evidence. I asked the Minister and her officials whether they could show us their workings that demonstrate that the increase in pollution from extra homes will be more than offset by the mitigation measures that are proposed in this amendment. No answer was forthcoming; instead, the Minister said that she believed these measures will enhance the protection of the environment. Belief has an important role in our society, particularly in places of worship, but I have never heard a conservation scientist, an ecologist or someone concerned with protecting the environment claim that by believing that we can make our waters cleaner or that by believing we can protect curlews and other endangered species. Without seeing the workings, without understanding anything about the evidence that underpins this proposal from the Government, I simply cannot see how anyone could vote for it.
My Lords, I briefly rise to associate myself with the remarks of the noble Duke, the Duke of Wellington, and a number of other noble Lords. I have enormous sympathy for the Government. I believe that we absolutely need new housing. We have a problem with the shortage of housing stock. House builders should not have unnecessary barriers placed in the way of them getting on with development. However, I urge the Minister to listen to the sentiments expressed all around this House about the way in which the Government are currently planning to fulfil their laudable desire to ensure we get more homes built.
As the noble Lord, Lord Anderson, said, Amendment 247YY would give carte blanche to this and any future Government to do what they liked to override the environmental protections of which I am so proud. This Government have done more than most other Governments to implement legislation that protects the environment. However, there is a risk that we will be tearing that up.
I congratulate the noble Duke, the Duke of Wellington, on his amendments to government Amendment 247YY, which is asking us to ignore the science and local authorities just to assume that no pollution will happen even when they are being told it will or know that it will.
As my noble friend Lord Deben said, the “polluter pays” principle is important, but maybe what is happening here is a cart and horse problem. If my noble friend the Minister were able to assure the House that the mitigation measures that I am sure are genuinely intended to offset the pollution caused by any new developments will be in place before those developments pollute rivers, we would be able to consider that. However, there is no guarantee that any of the mitigation measures, however well meant and well intentioned, will be able to be put in place before the pollution happens.
I therefore urge my noble friend to think again about the Government’s apparently panicked reaction, which perhaps is intended to please housebuilders, who are very keen to get on with developing houses in places that they know would be of great value to them. I have enormous sympathy with my noble friend Lord Cathcart, who wants to do some development and is being blocked. However, we have to protect the environment. I am sure my noble friend would like to do that, but I hope that we can understand that in keeping this delicate balance of building new homes today but protecting our habitats and precious environment in the long run, we must try to prioritise these precious areas of the country that we as a Government have done so much to protect. As I say, I am proud of that, and we must not tear those protections up.
My Lords, I thank all noble Lords for this constructive debate. It has been wonderful to hear expertise from across the House on such an important issue as environmental protections.
I remind everybody that this is day seven on Report of the levelling-up Bill, which we began in January with Second Reading, and this is the first time this issue has been brought to the attention of the House. We have to ask ourselves, why? I cannot remember who raised the fact that this issue was known about five years ago. The Government have known that it has been an issue of contention for housebuilders for a considerable number of years, yet it is brought to us on day seven on Report, in a form that means we cannot have any prior discussion of it. I wonder whether that relates to a sudden rise in the share price of house- building companies.
The argument that housebuilding is jeopardised unless the Government take action to throw out the protection of our watercourses is completely false. I think it may have been the noble Lord, Lord Deben, who said that more than 1 million planning permissions are awaiting development. As my noble friend Lady Parminter so expertly said, the sites in question—it is not everywhere; it is particular sites—are some of the most environmentally sensitive in this country, if not in Europe. Why would we put those sites at risk when there is an opportunity to protect them for the future of our children and grandchildren?
The noble Lord, Lord Krebs, and the noble Baroness, Lady Willis, emphasised the importance of evidence. Where is it? There is a vacuum when we look for evidence in support of the government amendments. Indeed, there is the reverse: there is evidence that I think they have chosen to ignore.
The Government have framed the issue as an either/or: either housebuilding or the environment; either house- building or water protection. However, that is a totally false dichotomy. It is possible to build homes and protect our environment. Not only do these government amendments require local planning authorities to ignore protections; what is almost worse is that at an earlier stage of the Bill the Minister, who at that point was the noble Lord, Lord Benyon, was very pleased to tell the House how the government amendments were being brought forward to protect chalk streams. We were all delighted. However, chalk streams are some of the areas that will be affected if these government amendments go through. Therefore, two months ago, it was about protecting chalk streams—wonderful. Now it is about throwing out those protections on a whim.
We on these Benches will vigorously oppose those government amendments, and if and when they are brought to a vote, we will be in the Not-Content Lobby, particularly on Amendment 247YY and then the new schedule in Amendment 247YYA. You can have both housebuilding and environmental protection, and that is what we will vote for.
My Lords, I start by thanking the noble Baroness, Lady Willis of Summertown, for her introduction to this debate. It has been a very important debate with some excellent contributions, and I am sure that it has given many noble Lords on the opposite Benches food for thought. I will speak to my Amendment 247YYDA and will oppose certain government amendments in this group.
The current nutrient neutrality rules do not work, as we have heard from noble Lords today, but we do not think that the Government’s proposals work either. We certainly do not agree with the powers being introduced in government Amendment 247YY, or government Amendment 247YYA, which introduces new Schedule 13 and means abandoning legal protections for the nation’s most precious and sensitive habitats, on the premise that this is the only way to increase housing supply. As we have heard from noble Lords, this is completely wrong. It is entirely possible to balance the need for more homes with the need to protect nature. That is why have tabled Amendment 247YYDA, which would establish a process to consider alternative ways to reform nutrient neutrality regulations. Perhaps I can draw the attention of the noble Lords, Lord Best and Lord Moylan, to our proposals.
The amendment would launch a public consultation to consider the alternatives, allowing for an evidence-based approach that the Government’s new schedule completely lacks. Before I expand on how that alternative could be established, I want to explain why we will be opposing the introduction of the government amendments in this group.
Put simply, this change of policy means that developers will no longer need to mitigate harmful pollutants when building in the most environmentally sensitive areas. Noble Lords have made quite clear their concerns about this approach. We believe that the resulting increase in river pollution is a wholly unnecessary price to pay for building the homes that we are in short supply of. We also believe that the way the Government have introduced the amendments has been entirely inappropriate.
As we have heard from other noble Lords in this debate, the Bill has been passing through Parliament for more than 16 months, and yet this policy has been added only at the very last minute, during the final days of Report. It is accompanied, as we have heard, by excessive regulatory powers, which we will oppose, and which, as we have heard, noble Lords on the Delegated Powers Committee, have referred to as “open-ended”. I would not suggest that the word “proportionate”, which the Minister used, was the correct response. What is more, the committee noted that
“there appears to have been no public consultation or engagement with stakeholders prior to the publication of these measures”.
For a group of amendments which the Government claim could cost £230 million—other estimates suggest they would cost far more—no consultation or engagement is, frankly, astounding.
As the noble Duke, the Duke of Wellington, said, but which I think needs repeating, the Office for Environmental Protection has issued statutory advice to say that the measure
“would demonstrably reduce the level of environmental protection provided for in existing environmental law”—
in other words, a regression. We have already heard, and so the House will not need further reminding, that during consideration of the retained EU law Bill the Government repeatedly ruled out ever taking this step. On Monday 26 June, the noble Lord, Lord Callanan, told this House that
“the Government will not row back on our world-leading environmental protections”.—[Official Report, 26/6/23; col. 469.]
However, the Office for Environmental Protection says that this is exactly what is happening. We believe, therefore, that it is wholly inappropriate for this House to agree these amendments to the Bill.
Instead, I urge the Minister to consider the approach that we have outlined in Amendment 247YYDA, which would open up the possibility of nutrient neutrality reform on the basis of consultation and evidence, and through the principle of good law. This is an amendment which has benefited from the input of the Local Government Association, and, I am pleased to say, has the support of Wildlife and Countryside Link. As I mentioned earlier, it would allow for a public consultation on various proposals which have been suggested by other Members of this House and other organisations across the UK. While I will not delve into the various options now, noble Lords will note that proposed new subsection (2) outlines the key alternatives. I also draw attention to the fact that the amendment stipulates that the consultation would launch, be completed and laid before both Houses within three months. I see no reason why the Government cannot provide an evidence-based solution to this Parliament.
It is abundantly clear that there are far better ways to build the new homes we need than at the expense of our precious environment. I hope the Minister will accept our amendment, withdraw the government amendments, and agree that polluting our rivers is not a price we need to pay for sufficient housing supply. If not, as other noble Lords have indicated, we will oppose the government amendments.
My Lords, let me conclude this debate by responding to a number of points that have been made, starting with the noble Duke, the Duke of Wellington. I shall not name all noble lords, if your Lordships do not mind, in each response, but those who asked the questions will know who they are, and questions were asked by a number of noble Lords.
I turn first to the question on the views of the OEP. As my right honourable friend the Environment Secretary has set out very clearly in her response to the Office for Environmental Protection, we do not accept that this will lead to regression in environmental outcomes. It is the Government’s judgment that it will not. The reform package will improve the conditions of these habitat sites. The obligations on water companies to upgrade wastewater treatment works in designated catchment areas by 1 April 2030 will far outweigh the nutrients expected from the new housing developments, by putting in place wider upgrades for the long term. These upgrades will benefit existing houses, not just new homes, providing an effective approach to reducing existing wastewater nutrient pollution, not just forestalling the possible future pollution from development. On top of that, we are doubling investment in Natural England’s nutrient mitigation scheme to £280 million, which will be sufficient to offset the very small amount of additional nutrient discharge attributable to the 100,000 homes between now and 2030.
Staying on the OEP, my noble friend Lady McIntosh suggested that the Government broke the law on sewage. We always welcome scrutiny from the OEP, and we are co-operating with it fully to support its work in many areas. The OEP has not concluded that the Government broke the law on combined sewer overflows; it issued an information notice requesting a further response from Defra, Ofwat and the Environment Agency, and is continuing to investigate.
I move on to another issue that the noble Duke, the Duke of Wellington, brought up, as did many other noble Lords: how can we justify asking local authorities to effectively ignore the facts? I dealt with this in my opening speech, but I am going to repeat it.
The assumption we are asking competent authorities to make is reasonable for two reasons. First, this assumption is limited to developments where the wastewater is treated by a wastewater treatment works or a private treatment system regulated under the environmental permitting regulations. This means that nutrients from wastewater will remain subject to the strict legal duties that are binding on water companies and others who operate wastewater treatment systems. These duties are becoming stricter in many affected catchments, thanks to the wastewater treatment work upgrades mandated through the Bill. As I said before, the Government estimate that this will lead to a 69% reduction in phosphorus loads and around a 57% reduction in nitrogen loads in total from wastewater treatment works across all affected catchments, significantly reducing nutrient pollution at source in a principled manner.
Secondly, a package of measures we are putting in place will ensure that we more than offset the additional nutrient flows from new housing. This includes the significant additional investments we are putting into Natural England’s nutrient mitigation scheme. Local authorities will be able to object to planning applications on the basis of nutrient pollution; it is mandatory to consider it. Local planning authorities will still have to consider the impact from nutrient pollution as a material planning consideration, as the amendments made no change to the wider operation of the planning system.
Planning decision-makers will continue to have regard to the national planning policy and material planning considerations, and the Government are clear that the focus of planning decisions should always be on whether the proposed development is an acceptable use of land, rather than the control of processes, where these are subject to separate pollution control regimes. Nutrient pollution from wastewater treatment works is controlled under environmental permits, and planning decisions should assume that these regimes will operate effectively.
Another issue brought up by a number of noble Lords is that the developer should pay. The Government agree. It is essential that housebuilders contribute fairly, and we all agree with the principle that the polluter should pay. We are working with the HBF to structure a fair and appropriate contribution system. My officials are in active discussions with it about the design of these schemes, including considering how they are delivered.
The noble Baroness, Lady Parminter, brought up an issue with the current mitigation schemes and whether we are undermining their good work, including among the farming community. I do not think that we are. We are doubling the funding available for nutrient reduction schemes today and making clear that we expect contributions from the larger developers. However, the Government are removing the obligation on developers to secure nutrient credits up front on a project-by-project basis because this has caused an unacceptable barrier to development. Our plans will ensure that the new nutrients from development will still be offset while shifting our longer-term focus to restoration. Natural England will now have the funding and certainty to lead this work for the remainder of the decade. We expect that it will seek to partner with third parties to deliver nutrient reductions and associated environmental co-benefits where this represents good value for money.
I move on to the Henry VIII powers. The noble and learned Lord, Lord Hope, asked for an example of how the Secretary of State might use these. It is hoped that the amendments as they stand will be sufficient in ensuring the policy intent of unlocking housing blocked by legacy EU law on nutrient neutrality. However, due to the complex nature of the legislative system in this area, the Government may need to make incidental, consequential and similar provisions to give effect to this policy intent. The power will be used only where necessary to give effect to our policy intent. The Government remain bound by the ambitious, legally binding targets for water quality and biodiversity and will not allow any regression in environmental outcomes through our new approach. The noble Lord, Lord Anderson, asked whether the Henry VIII powers could reinstate the measures. The Government have specifically constrained the Henry VIII powers so that they are unable to amend Part 6 of the habitats regulations. Therefore, they could reinstate these measures using these powers.
The noble Baroness, Lady Parminter, brought up that 70% of the 100,000 houses already have approved mitigations in place, but that is not the case. As we have heard, in some areas of the country, developers, environmental organisations, local authorities and Natural England have begun to invest in mitigations. However, we have listened to the concerns of local authorities, communities and housebuilders that, while a positive development, mitigation schemes are moving far too slowly, with no guarantee that demand can be met imminently, and estimates carry significant uncertainty given the developing nature of the market and risk of underdelivery. There is no guarantee that demand can be met soon enough to unlock what we consider to be much-needed homes.
The noble Baroness, Lady Jones of Whitchurch, brought up the issue of houses not being delivered all over the country—we were not stopping these houses. I suggest that she listens to Councillor Darren Rodwell, the environmental spokesman for the LGA and a Labour councillor:
“Thousands of new homes are on hold due to river pollution and water level concerns so we are pleased that the Government has acted on our calls for urgent action and funding to address pollution at source. However, short-term local solutions are still needed to address environmental concerns about river pollution. Councils are calling for a doubling down on long-term action to protect rivers by focusing on reducing pollution at source. Councils want to work together with government, agencies, developers and the agricultural sector to find ways to address pollution locally so homes can be built, while doing everything possible to reduce pollution at source and maintain safe water levels”.
I agree with Darren Rodwell, and that is what we are delivering.
I think those were all the main questions. If I have missed anything, I will look in Hansard and write to noble Lords. I will now address the specific amendments.
First, I reassure the noble Baroness, Lady Willis of Summertown, that this upgrade duty will be monitored and enforced effectively. The Government work closely with the water industry regulators to ensure that the water companies are compliant with their statutory duties and bring forward improvements as agreed and set out in the water industry national environment programme. There will be regular liaison between water companies and the Environment Agency to discuss progress and risks throughout the delivery of the programme between 2025 and 2030.
Through this, the Environment Agency will ensure that the water companies deliver the required upgrades to agreed timelines. If this is not the case, the Environment Agency will take all the necessary enforcement action, including through the use of its powers under the environmental damage regulations as amended by this Bill. Together with Ofwat’s established process for ensuring that water companies are adequately funded to deliver on their business plans, these processes will see that the water companies comply with their statutory duties outlined in the Bill. As such, I hope I can reassure the House that this amendment is not necessary.
Turning to the other amendments on this issue, I hope that my explanation has been sufficient to convince my noble friend the Duke of Wellington of the powerful reason for the change that the Government are making. It is absolutely not the case that these changes will result in nutrient pollution, whether from wastewater or any other source, being disregarded. The assumption that we are legislating that the competent authorities must make for the purposes of an HRA for a plan or project is very reasonable in the context of our wider approach.
First, the approach that the Government are taking is narrow, as it relates only to the consideration of nutrients in HRAs and does not seek to amend or change the operation of the material planning considerations in other decisions within the planning system. This means that pollution from development affecting the environment may still be a material planning consideration based on the local circumstances. The drafting carefully reflects the policy intent not to preclude an LPA from considering as a material planning consideration nutrient pollution, ensuring that, where proposed, any step to reduce pollution can still be considered and implemented.
Secondly, these legislative changes are necessary and effective only to remove consideration of nutrients in urban wastewater from the scope of the habitats regulations assessment in designated catchments. It is limited to development where the wastewater is treated by wastewater treatment works or private treatment systems, regulated under the environmental permitting regulations, so it does not apply to agricultural or industrial developments. This means that nutrients from wastewater will remain subject to strict legal duties binding on water companies and others who operate wastewater treatment systems. These duties are becoming stricter in many affected catchments thanks to the wastewater treatment work upgrades mandated through the Bill.
The Government estimate that this will lead to a reduction in phosphorous loads of around 69% and a reduction in nitrogen loads of around 57%, in total, from the wastewater treatment works across all affected catchments—significantly reducing nutrient pollution at source in a principled manner.
Thirdly, alongside these legislative changes, as I have said, we have announced a substantial package of commitments to the environment, including a doubling of the investment in Natural England’s nutrient reduction schemes to expand beyond offsetting pollution and towards restoring sites.
We are working with developers to design a contribution scheme which ensures that homebuilders continue to make a fair and proportionate contribution to this programme. This sits alongside commitments to accelerate work to recover habitat sites in the catchments most impacted by nutrient pollution and with the most acute housing pressures, and to support farmers to manage nutrients more sustainably, including £200 million towards slurry infrastructure and equipment grants and a new £25 million fund to invest in innovative farming technologies to accelerate progress towards a nutrient circular economy.
Finally, I can reassure the noble Duke that the Government did consider a range of possible approaches to this very difficult issue. Given the delays currently being caused to housing delivery in affected areas, we believe this legal change is the only way to ensure certainty for competent authorities that they can proceed with planning consent. The Government considered a number of options in reaching this conclusion, including issuing guidance about how degradations linked to imperative reasons of overriding public interest—IROPIs—could be applied within the HRA framework. However, this would continue to require lengthy case-by-case considerations and a direct link to be drawn between compensation and individual developments. It would therefore have a limited and still uncertain impact on the Government’s objectives of giving confidence to communities that housing and other development will be possible in the affected areas.
I move on to the amendment tabled by my noble friend Lord Caithness. The Government are seeking a power to guard against unintended consequences and to ensure a functioning statute book. Therefore, it is not appropriate to limit the scope of the power to just social housing delivery. We are very clear that it is not a problem specific to social housing. There is a critical need for housing of all tenures in this country. We do not see any justification to restrict our intervention in this way, particularly as we are clear that we are implementing sufficient measures to fully offset any nutrient impacts from changes to the habitats regulations.
I turn finally to the amendment tabled by the noble Baroness, Lady Hayman of Ullock. While I fully understand the intent behind the noble Baroness’s proposal, we have already outlined the urgency of need for these interventions. The Government believe action is needed now to get on with housebuilding. Our plan would do that while protecting the environment. What is being proposed instead amounts to dithering and delay—and adds confusion rather than clarity.
I am afraid that the party opposite is planning to vote down laws that would unlock 100,000 new homes and enhance the environment. It has ignored the pleas of its own council leaders and the entire development industry, including social housing builders, to back government plans. This is the sort of short-term political manoeuvring that does nothing to benefit the British people and everything to undermine public confidence in us as politicians and our Parliament. What it is proposing will end the dream of home ownership for thousands of families and block an £18 billion boost to our economy. Let us be clear: many small businesses up and down this country need these changes—if not, they will go out of business. The party opposite talks the talk on housebuilding but this is the first opportunity to walk the walk. I ask noble Lords not to back the blockers but back the builders.
The amendments in my name seek to remove what is an unavoidably burdensome process that is a major barrier to house delivery across around 14% of England’s entire land area. They deal with nutrient neutrality not with a sticking plaster but at source. I urge this House to support them when they are moved.
My Lords, this will be a very short speech. We have obviously heard substantive arguments, both for and against the nutrient neutrality laws this evening. The Government’s Amendment 247A is at this point acceptable. I therefore beg leave to withdraw my Amendment 247. I do so because there are far more substantial votes to be had this evening on this Bill.
Amendment 247 withdrawn.
Amendments 247A to 247YD
247A: Clause 158, page 184, line 21, at end insert—
“(1A) In carrying out the duty under subsection (1), a sewerage undertaker must consider whether nature-based solutions, technologies and facilities relating to sewerage and water could be used to meet the standard.”Member's explanatory statement
This amendment requires sewerage undertakers to consider using nature-based solutions in the course of meeting the nutrient pollution standard.
247B: Clause 158, page 184, line 32, leave out “Sensitive” and insert “Nutrient affected and sensitive”
Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 184, line 32.
247C: Clause 158, page 184, line 32, at end insert—
“(A1) Where the Secretary of State considers that a habitats site that is wholly or partly in England is in an unfavourable condition by virtue of pollution from nutrients in water of any kind, the Secretary of State must designate the catchment area for the habitats site as a nutrient affected catchment area.”Member's explanatory statement
This amendment requires the Secretary of State to designate the catchment areas for habitats sites in an unfavourable condition due to nutrient pollution as “nutrient affected catchment areas”.
247D: Clause 158, page 184, line 35, after “nutrients” insert “in water”
Member's explanatory statement
This amendment clarifies that the nutrients comprising nitrogen or compounds of nitrogen must be in water.
247E: Clause 158, page 185, line 1, after “nutrients” insert “in water”
Member's explanatory statement
This amendment clarifies that the nutrients comprising phosphorus or compounds of phosphorus must be in water.
247F: Clause 158, page 185, line 6, after “pollution” insert “from nutrients in water of any kind, or”
Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 184, line 32.
247G: Clause 158, page 185, line 8, at end insert “or
(c) whether to exercise the power in subsection (4)(e),”Member's explanatory statement
This amendment is consequential on the amendment to clause 158 at page 185, line 20.
247H: Clause 158, page 185, line 11, at end insert—
“(3A) A designation under subsection (A1)—(a) must be in writing,(b) must be published as soon as practicable after being made, and(c) takes effect—(i) on the day specified in the designation, or(ii) if none is specified, on the day on which it is made.” Member's explanatory statement
This amendment imposes procedural requirements in relation to the duty created by the second amendment in my name to clause 158 at page 184, line 32.
247J: Clause 158, page 185, line 20, at end insert “, and
(e) may specify the concentration that applies to a plant (which discharges into the catchment area) in relation to a nutrient pollution standard instead of the standard concentration.”Member's explanatory statement
This amendment allows the Secretary of State to specify the maximum permissible concentration of nitrogen or phosphorus in treated effluent discharged by a plant (instead of the concentration specified in section 96F).
247K: Clause 158, page 185, line 22, at end insert—
“(5A) Before specifying a concentration under subsection (4)(e), the Secretary of State must consult the Environment Agency.(5B) A concentration specified under subsection (4)(e) ceases to have effect if, after the day on which the designation is made, the plant becomes an exempt plant.”Member's explanatory statement
This amendment deals with procedural matters related to the power created by the amendment to clause 158 at page 185, line 20.
247L: Clause 158, page 185, line 25, after “subsection” insert “(A1),”
Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 184, line 32.
247M: Clause 158, page 186, line 13, at end insert—
“(4A) A designation under subsection (2) may specify the concentration that applies to a plant in relation to a nutrient pollution standard instead of the standard concentration.(4B) Before specifying a concentration under subsection (4A), the Secretary of State must consult the Environment Agency.(4C) A concentration specified under subsection (4A) ceases to have effect if, after the day on which the designation is made, the plant again becomes an exempt plant.”Member's explanatory statement
This amendment provides a power equivalent to that created by the amendment to clause 158 at page 185, line 20, for cases where (by virtue of a designation made by the Secretary of State) an exempt plant later becomes subject to the nutrient pollution standard.
247N: Clause 158, page 186, line 17, leave out “Subsection (7) applies” and insert “Subsections (7) and (7A) apply”
Member's explanatory statement
This amendment is consequential on the amendment to clause 158 at page 186, line 25.
247P: Clause 158, page 186, line 25, at end insert—
“(7A) The regulations may provide for the Secretary of State to specify the concentration that applies to a plant that ceases, by virtue of the regulations, to be an exempt plant in relation to a nutrient pollution standard instead of the standard concentration; and, if such provision is made, the regulations must—(a) require that the Secretary of State consult the Environment Agency before specifying a concentration; (b) provide for any specified concentration to cease to have effect if, after the day on which the plant ceases to be an exempt plant, the plant again becomes an exempt plant.”Member's explanatory statement
This amendment provides an enabling power equivalent to the power created by the amendment to clause 158 at page 185, line 20, for cases where (by virtue of regulations) an exempt plant later becomes subject to the nutrient pollution standard
247Q: Clause 158, page 186, line 33, at end insert—
“(10) References in this section to the designation of an associated catchment area are to its designation as a sensitive catchment area.”Member's explanatory statement
This amendment, which is consequential on the second amendment in my name to clause 158 at page 188, line 22, clarifies the meaning of existing references to the designation of catchment areas.
247R: Clause 158, page 186, line 36, after “(2)” insert “or (2A)”
Member's explanatory statement
This amendment is consequential on the amendment to clause 158 at page 187, line 10.
247S: Clause 158, page 187, line 10, at end insert—
“(2A) Where the associated catchment area has ceased to be a catchment permitting area and a date has been specified under section 96FB(4)(c), that date is the upgrade date.”Member's explanatory statement
This amendment provides for an alternative upgrade date where the sensitive catchment area has also been designated as a catchment permitting area (see the second amendment in my name to clause 158 at page 188, line 22) and that designation is later revoked.
247T: Clause 158, page 187, line 12, at end insert—
“(4) References in this section to the designation of an associated catchment area are to its designation as a sensitive catchment area.”Member's explanatory statement
This amendment, which is consequential on the second amendment in my name to clause 158 at page 188, line 22, clarifies the meaning of existing references to the designation of catchment areas.
247U: Clause 158, page 187, line 15, leave out from “if” to end of line 16 and insert “—
(a) where the associated catchment area is not a catchment permitting area (see section 96FA), the concentration of total nitrogen in treated effluent that the plant discharges is not more than—(i) 10 mg/l, or(ii) where a different concentration applies to the plant under section 96C(4)(e) or 96D(4A) or by virtue of regulations made under section 96D(7A), that concentration;(b) where the associated catchment area is a catchment permitting area, the sewerage undertaker is complying with any condition in the environmental permit for the plant imposed in pursuance of section 96FA(3)(b).”Member's explanatory statement
This amendment provides for the nutrient pollution standard to be met through (i) the concentration specified under the powers created by the amendments to clause 158 at page 185, line 20, page 186, line 13, and page 186, line 25 or (ii) compliance with conditions imposed under provision inserted by the second amendment in my name to clause 158 at page 188, line 22.
247V: Clause 158, page 187, line 18, leave out from “if” to end of line 19 and insert “—
(a) where the associated catchment area is not a catchment permitting area, the concentration of total phosphorus in treated effluent that the plant discharges is not more than—(i) 0.25 mg/l, or(ii) where a different concentration applies to the plant under section 96C(4)(e) or 96D(4A) or by virtue of regulations made under section 96D(7A), that concentration;(b) where the associated catchment area is a catchment permitting area, the sewerage undertaker is complying with any condition in the environmental permit for the plant imposed in pursuance of section 96FA(3)(b).”Member's explanatory statement
This amendment provides for the nutrient pollution standard to be met through (i) the concentration specified under the powers created by the amendments to clause 158 at page 185, line 20, page 186, line 13, and page 186, line 25 or (ii) compliance with conditions imposed under provision inserted by the second amendment in my name to clause 158 at page 188, line 22.
247W: Clause 158, page 188, line 19, at end insert—
“(ca) make provision in relation to section 96FA, including—(i) the determination of compliance with conditions in environmental permits imposed in pursuance of section 96FA(3)(b);(ii) in connection with any kind of plant;”Member's explanatory statement
This amendment provides for regulations under the new section 96F(5) of the Water Industry Act 1991 (determination of nutrient levels in treated effluent) to apply in connection with the provision inserted by the second amendment in my name to clause 158 at page 188, line 22.
247X: Clause 158, page 188, line 22, at end insert—
“(e) make different provision for different purposes or different areas (including different plants within an area).”Member's explanatory statement
This amendment clarifies that regulations under the new section 96F(5) of the Water Industry Act 1991 may make different provision for different areas, plants or purposes.
247Y: Clause 158, page 188, line 22, at end insert—
“96FA Nutrient pollution standards determined through environmental permitting(1) The Secretary of State may designate a sensitive catchment area as a catchment permitting area.(2) In determining whether to make a designation under subsection (1) or to revoke such a designation under section 96FB(3)(c), the Secretary of State may take into account, in particular, advice from, or guidance published by, the Environment Agency or Natural England.(3) Where the Secretary of State makes a designation under subsection (1), the Environment Agency must—(a) review the environmental permits for the plants that discharge treated effluent into the catchment permitting area that are—(i) nutrient significant plants, and(ii) such other plants that the Environment Agency considers appropriate (including such plants within an area that may be determined by the Environment Agency), and(b) impose conditions on those permits relating to nutrients in treated effluent discharged by those plants—(i) under Chapter 3 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, and (ii) for the relevant purpose.(4) The “relevant purpose” is ensuring that, on and after the applicable date, the overall effect on the habitats site associated with the catchment permitting area of nutrients in treated effluent discharged by all the plants that discharge treated effluent into the catchment permitting area is less significant or the same as the overall effect on the site of nutrients in treated effluent that would be discharged by those plants if—(a) the standard concentration applied to nutrient significant plants, and(b) the nutrient significant plants were (on that basis) meeting the nutrient pollution standard on and after the applicable date.(5) For that purpose, a condition imposed on an environmental permit in pursuance of subsection (3)(b) may, in particular—(a) require, or have the effect of requiring, that the concentration of nutrients in treated effluent discharged by a plant is higher or lower than, or equal to, the standard concentration;(b) relate to any or all of the plants mentioned in subsection (3)(a), including the concentration of nutrients in treated effluent discharged by those plants.(6) In subsection (4)—(a) the “applicable date” means—(i) where the designation under section 96C(1) or (2) of the area that is the catchment permitting area takes effect during the initial period, 1 April 2030, or(ii) where that designation takes effect after the initial period, the date specified under section 96C(4)(d) in that designation;(b) a habitats site is “associated” with a catchment permitting area if water released into the area would drain into the site.(7) The duty in subsection (3) applies in relation to the grant of an environmental permit for a plant that discharges (or will discharge) treated effluent into the catchment permitting area as if—(a) paragraph (a) were omitted, and(b) in paragraph (b)— for “those permits” there were substituted “the permit”; for “those plants” there were substituted “the plant”; for “Chapter 3” there were substituted “Chapter 2”.(8) It is for the Environment Agency to determine the overall effect on a habitats site of nutrients in treated effluent.(9) Regulations made by the Secretary of State may specify how such determinations are to be made.(10) In this section “nutrients”, in relation to an area designated under—(a) section 96C(1), means nutrients in water comprising nitrogen or compounds of nitrogen;(b) section 96C(2), means nutrients in water comprising phosphorus or compounds of phosphorus.96FBSection 96FA: procedure and revocations(1) A designation under section 96FA(1) or revocation of such a designation under subsection (3)(c)—(a) must be in writing,(b) must be published as soon as practicable after being made, and(c) takes effect in accordance with subsection (3) or (4) (as appropriate).(2) A designation under section 96FA(1) may be made at the same time, or at any time after the time, that the designation under section 96C(1) or (2) of the area as a sensitive catchment area is made. (3) A designation under section 96FA(1)—(a) if made before the time that the designation under section 96C(1) or (2) takes effect, takes effect at the same time as that designation;(b) if made after the time that the designation under section 96C(1) or (2) takes effect, takes effect on the day specified in it;(c) may be revoked.(4) A revocation under subsection (3)(c)—(a) takes effect—(i) on the day specified in the revocation, or(ii) if none is specified, on the day on which it is made;(b) has no effect in relation to the designation of the area under section 96C(A1), (1) or (2);(c) may specify the upgrade date that is to apply in relation to nutrient significant plants (see section 96E(2A)).(5) In determining whether an upgrade date should be specified under subsection (4)(c), the Secretary of State may take into account, in particular, advice from, or guidance published by, Natural England or the Environment Agency.”Member's explanatory statement
This amendment allows for a catchment area to be designated as a catchment permitting area. Compliance with the nutrient pollution standard will be determined through the collective performance of all plants that discharge into the area.
247YA: Clause 158, page 188, line 23, leave out “sensitive”
Member's explanatory statement
247YB: Clause 158, page 188, line 26, at end insert—
“(za) all the nutrient affected catchment areas,”Member's explanatory statement
This amendment requires all nutrient affected catchment areas (designated under the duty created by the second amendment in my name to clause 158 at page 184, line 32) to be displayed on a map maintained by the Secretary of State.
247YC: Clause 158, page 188, line 30, before “sensitive” insert “nutrient affected and”
Member's explanatory statement
247YD: Clause 158, page 189, line 1, leave out “the figure specified in section 96F(1) or (2)” and insert “where the associated catchment area for a plant is not a catchment permitting area, the figure specified in section 96F(1)(a)(i) or (2)(a)(i), under section 96C(4)(e) or 96D(4A) or by virtue of regulations made under section 96D(7A)”
Member's explanatory statement
This amendment is consequential on the amendments to clause 158 at page 185, line 20, page 186, line 13, and page 186, line 25.
Amendments 247A to 247YD agreed.
247YE: Clause 158, page 189, line 4, leave out sub-paragraph (iv)
Member's explanatory statement
This amendment is consequential on the amendment that substitutes Schedule 13.
Amendment 247YE agreed.
Amendments 247YF to 247YW
247YF: Clause 158, page 189, line 11, at end insert—
“(c) all catchment permitting areas.”Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 188, line 22.
247YG: Clause 158, page 189, line 36, after “96B” insert “or 96FA”
Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 188, line 22.
247YH: Clause 158, page 189, line 43, leave out “that section” and insert “those sections”
Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 188, line 22.
247YJ: Clause 158, page 190, line 20, leave out “96F(1)” and insert “96F(1)(a)(i)”
Member's explanatory statement
This amendment is consequential on the amendments to clause 158 at page 185, line 20, page 186, line 13, and page 186, line 25.
247YK: Clause 158, page 190, line 20, leave out “lower” and insert “different”
Member's explanatory statement
This amendment allows for section 96F(1) to be amended to specify a different nutrient concentration.
247YL: Clause 158, page 190, line 22, leave out “96F(2)” and insert “96F(2)(a)(i)”
Member's explanatory statement
This amendment is consequential on the amendments to clause 158 at page 185, line 20, page 186, line 13, and page 186, line 25.
247YM: Clause 158, page 190, line 22, leave out “lower” and insert “different”
Member's explanatory statement
This amendment allows for section 96F(2) to be amended to specify a different nutrient concentration.
247YN: Clause 158, page 190, line 27, leave out from “apply” to “which” and insert “for different purposes or different areas (including different plants within an area), the regulations may amend section 96F(1)(a)(i) or (2)(a)(i) to specify those concentrations and the purposes or areas for (or plants within an area to)”
Member's explanatory statement
This amendment clarifies that regulations under the new section 96I(4) of the Water Industry Act 1991 may make different provision for different areas, plants or purposes.
247YP: Clause 158, page 190, line 38, leave out “and 96K” and insert “, 96K and 96L”
Member's explanatory statement
This amendment is consequential on the amendment to clause 158 at page 192, line 33.
247YQ: Clause 158, page 190, line 39, leave out “and 96K” and insert “, 96K and 96L”
Member's explanatory statement
This amendment is consequential on the amendment to clause 158 at page 192, line 33.
247YR: Clause 158, page 191, line 10, at end insert—
““catchment permitting area” means a sensitive catchment area designated under section 96FA(1) for the time being;“environmental permit” means a permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016; and a reference to a condition imposed on such a permit is to be construed in accordance with those regulations;”Member's explanatory statement
This amendment defines terms introduced by the second amendment in my name to clause 158 at page 188, line 22.
247YS: Clause 158, page 191, line 31, at end insert—
““nutrient affected catchment area” means an area designated under section 96C(A1);”Member's explanatory statement
247YT: Clause 158, page 192, line 11, at end insert—
““standard concentration” , in relation to the nutrient pollution standard that applies to a plant, means the concentration specified in section 96F(1)(a)(i) or (2)(a)(i) on the date that the designation of the associated catchment area as a sensitive catchment area takes effect;”Member's explanatory statement
This amendment defines a term introduced by the amendment to clause 158 at page 185, line 20.
247YU: Clause 158, page 192, line 30, leave out “96F(1) or (2)” and insert “section 96F(1) or (2) or section 96FA(4)”
Member's explanatory statement
247YV: Clause 158, page 192, line 32, at end insert—
“96L Setting and enforcing nutrient pollution standards(1) The Secretary of State may by regulations make provision about the setting and enforcing of nutrient pollution standards.(2) The Secretary of State may only exercise the power under subsection (1) if the Secretary of State considers that the provisions about the setting and enforcing of nutrient pollution standards will be at least as effective as the provision already in force under sections 96B to 96K, the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 810/2015) or this section as a result of the exercise of this power, including in relation to—(a) overall environmental protection (within the meaning of section 45 of the Environment Act 2021),(b) nutrient pollution levels discharged by plants or across catchment areas,(c) enforcement, or(d) costs.(3) The regulations may, in particular—(a) amend, repeal, revoke or otherwise modify—(i) sections 96B to 96K,(ii) the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, or(iii) provision made under this section;(b) provide for a sewerage undertaker’s compliance with the duty under section 96B (or an equivalent) to be determined by reference to matters other than the concentration of nitrogen or phosphorous in treated effluent discharged by a plant; (c) include provision applying or corresponding to any provision in sections 96B to 96K (with or without modifications);(d) include provision about the establishment of schemes involving sewerage undertakers and others for the purpose of encouraging or requiring sewerage undertakers to arrange or contribute to action in respect of the effect of nitrogen or phosphorous (from any source) on a habitats site;(e) make different provision for different purposes or different areas.”Member's explanatory statement
This amendment confers a power on the Secretary of State to make provision about the setting and enforcing of nutrient pollution standards.
247YW: Clause 158, page 192, line 34, leave out “96I,” and insert “96I, 96L,”
Member's explanatory statement
This amendment requires that all regulations under the new section 96L of the Water Industry Act (inserted by the amendment to clause 158 at page 192, line 33) are subject to the affirmative procedure.
Amendments 247YF to 247YW agreed.
Clause 159: Planning: assessments of effects on certain sites
247YX: Clause 159, page 193, line 3, leave out from the first “to” to end of line 4 and insert “make provision about the effect of nutrient pollution in waste water in relation to certain duties and decisions under those Regulations.”
Member's explanatory statement
This amendment, which is consequential on the amendment that substitutes Schedule 13, revises the description of the provision made by Schedule 13.
Amendment 247YX agreed.
247YY: After Clause 159, insert the following new Clause—
“Regulations: nutrients in water in England(1) The Secretary of State may by regulations make provision about the operation of any relevant enactment in connection with the effect of nutrients in water that could affect a habitats site connected to a nutrient affected catchment area.(2) The regulations may make any provision which the Secretary of State considers appropriate, including provision that—(a) disapplies or modifies, in relation to a relevant enactment, any effect of nutrients in water;(b) confers, removes or otherwise modifies a function (including a function involving the exercise of a discretion) under or by virtue of a relevant enactment;(c) affects how such a function is exercised, including the extent to which (if any) the effect of nutrients in water is taken, or to be taken, into account; (d) provides for an obligation under or by virtue of a relevant enactment to be treated as discharged (in circumstances where, but for the provision, the obligation may not have been discharged);(e) amends, repeals, revokes or otherwise modifies any provision of a relevant enactment.(3) A “relevant enactment” means—(a) an enactment comprised in or made under an Act of Parliament, or(b) retained direct EU legislation,so far as it relates to the environment, planning or development in England.(4) The enactments referred to in subsection (3)(a) do not include—(a) this section;(b) Part 6 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012).(5) Neither regulation 9 nor 16A of the Conservation of Habitats and Species Regulations 2017 applies in relation to this section.(6) In subsection (1) “habitats site” and “nutrient affected catchment area” have the meaning given in section 96J(2) of the Water Industry Act 1991; and a habitats site is connected to a nutrient affected catchment area if water released into the catchment area would drain into the site.(7) In this section “nutrients” means nutrients of any kind.(8) The power under subsection (1) may not be exercised after 31 March 2030.”Member's explanatory statement
This amendment confers a power on the Secretary of State to make regulations affecting the operation, in connection with the effect of nutrients in water, of enactments concerned with the environment, planning or development in England.
Amendment 247YYZA (to Amendment 247YY) and Amendment 247YYZB (to Amendment 247YY) not moved.
Schedule 13: Amendments of the Conservation of Habitats and Species Regulations 2017: assumptions about nutrient pollution standards
247YYA: Leave out Schedule 13 and insert the following new Schedule—
“Schedule 13Amendments of the Conservation of Habitats and Species Regulations 2017: effect of nutrient pollution in waste waterPart 1Introductory1 The Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) are amended as set out in this Schedule.Part 2Planning2 Chapter 2 of Part 6 (assessment of plans and projects: planning) is amended as follows.3 In regulation 70 (grant of planning permission), after paragraph (4) insert—“(5) See regulation 85A for provision about the effect of nutrient pollution in waste water.”4 In regulation 71 (planning permission: duty to review), after paragraph (9) insert—“(10) See regulation 85A for provision about the effect of nutrient pollution in waste water.”5 In regulation 77 (general development orders: approval of local planning authority), after paragraph (7) insert—“(8) See regulation 85B for provision about the effect of nutrient pollution in waste water.”6 In regulation 79 (special development orders), after paragraph (5) insert—“(6) See regulation 85A for provision about the effect of nutrient pollution in waste water.”7 In regulation 80 (local development orders), after paragraph (5) insert—“(6) See regulation 85A for provision about the effect of nutrient pollution in waste water.”8 In regulation 81 (neighbourhood development orders), after paragraph (5) insert—“(5A) See regulation 85A for provision about the effect of nutrient pollution in waste water.”9 In regulation 82 (simplified planning zones), after paragraph (6) insert—“(7) See regulation 85A for provision about the effect of nutrient pollution in waste water.”10 In regulation 83 (enterprise zones), after paragraph (6) insert— “(7) See regulation 85A for provision about the effect of nutrient pollution in waste water.”11 After regulation 85 insert—“Decisions where nutrient pollution in waste water is relevant: general(1) This regulation applies where—(a) a competent authority makes a relevant decision,(b) the potential development is development in England,(c) urban waste water from any potential development could affect a relevant site, and(d) that waste water would be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential development, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 63(1) or 65(2), or(b) the potential development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made—(a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 63(1) or 65(2) and despite paragraph (3)(a),(b) in representations made by the appropriate nature conservation body, in accordance with regulation 63(3), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation.(6) In this regulation—“potential development” , in relation to a relevant decision, means development—(a) that could be carried out by virtue of the planning permission, development order or scheme to which the decision relates, or(b) to which the decision otherwise relates;“relevant decision” means—(a) where any of the following provides that the assessment provisions apply in relation to doing a thing, the decision whether or not to do it—(i) regulation 70 (grant of planning permission),(ii) regulation 79 (special development orders),(iii) regulation 80 (local development orders),(iv) regulation 81 (neighbourhood development orders),(v) regulation 82 (simplified planning zones), or(vi) regulation 83 (enterprise zones),(b) where any of the following provides that the review provisions apply in relation to a matter, a decision under regulation 65(1)(b) on a review of the matter— (i) regulation 71 (planning permission: duty to review),(ii) regulation 79 (special development orders),(iii) regulation 80 (local development orders),(iv) regulation 81 (neighbourhood development orders),(v) regulation 82 (simplified planning zones), or(vi) regulation 83 (enterprise zones);but this does not apply to a matter mentioned in regulation 71(4) (any review of which would be conducted in accordance with another Chapter),(c) a decision on an application for a consent, agreement or approval required by a condition or limitation attached to a planning permission, or specified in an order, granted under Part 3, 7 or 13 of the Town and Country Planning Act 1990,(d) a decision whether to grant a reserved matters approval in accordance with section 92(1) of that Act, or(e) a decision whether to approve a biodiversity gain plan under paragraph 15 (approval of biodiversity gain plan) of Schedule 7A to that Act.Decisions where nutrient pollution in waste water is relevant: general development orders(1) Paragraph (2) applies where—(a) a local planning authority (within the meaning given by regulation 78(1)) makes a decision on an application under regulation 77 (general development orders: approval of local planning authority) for approval as mentioned in regulation 75 relating to proposed development in England,(b) urban waste water from the proposed development could affect a relevant site, and(c) that waste water would be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 77(6), or(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made—(a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 77(6) and despite paragraph (3)(a),(b) in the opinion provided by the appropriate nature conservation body, in accordance with regulation 76(4), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation. Regulations 85A and 85B: interpretation(1) In regulations 85A and 85B—“nutrients” means nutrients—(a) comprising nitrogen or phosphorus, or(b) comprising compounds of nitrogen or phosphorus;“relevant site” means a habitats site connected to a nutrient affected catchment area;“urban waste water” has the meaning given by regulation 2(1) of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (S.I. 1994/2841).(2) In the definition of “relevant site” in paragraph (1) “habitats site” and “nutrient affected catchment area” have the meaning given in section 96J(2) of the Water Industry Act 1991; and a habitats site is connected to a nutrient affected catchment area if water released into the catchment area would drain into the site.”Part 3Land use plans12 Chapter 8 of Part 6 (assessment of plans and projects: land use plans) is amended as follows.13 In regulation 105 (assessment of implications for European sites and European offshore marine sites), after paragraph (6) insert—“(7) See regulation 110A for provision about the effect of nutrient pollution in waste water.”14 In regulation 106 (assessment of implications for European site: neighbourhood development plans), after paragraph (3) insert—“(3A) See regulation 110A for provision about the effect of nutrient pollution in waste water.”15 In regulation 110 (national policy statements), in paragraph (3)(a), for “and 108” substitute “, 108 and 110A”.16 After regulation 110 insert—“Assessments under this Chapter: decisions where nutrient pollution in waste water is relevant(1) Paragraph (2) applies where—(a) a plan-making authority makes a relevant decision in relation to a land use plan relating to an area in England,(b) urban waste water from the area to which the plan relates could affect a relevant site, and(c) that waste water could be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the area to which the plan relates, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 105(1) or 106(3), or(b) the proposed use of the land will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made— (a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 105(1) or 106(3) and despite paragraph (3)(a),(b) in representations made by the appropriate nature conservation body, in accordance with regulation 105(2), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation.(6) In this regulation “nutrients”, “relevant site” and “urban waste water” have the meaning given in regulation 85C.(7) In this regulation “relevant decision” means—(a) a decision whether to give effect to a land use plan, or(b) a decision whether to modify or revoke a neighbourhood development plan.””Member's explanatory statement
This amendment substitutes Schedule 13, which amends the Conservation of Habitats and Species Regulations 2017, to provide that certain authorities/bodies (when exercising duties or making decisions relevant to the regulations) must assume that nutrients in waste water from proposed developments will not adversely affect habitats sites.
Amendment 247YYAA (to Amendment 247YYA)
247YYAA: In paragraph 11, inserted regulation 85A, leave out paragraphs (2) to (4)
Member's explanatory statement
This amendment, and two others in the name of the Duke of Wellington, would delete from the new Schedule 13 the requirement placed on a local authority to assume that nutrients in waste water will not cause harm to the environment.
Amendment 247YYAA (to Amendment 247YYA) not moved.
Amendments 247YYAB (to Amendment 247YYA) and 247YYAC (to Amendment 247YYA) not moved.
Clause 160: Remediation
Amendments 247YYB to 247YYD
247YYB: Clause 160, page 193, line 36, at end insert—
“(3A) Where—(a) the nutrient significant plant referred to in paragraph (1) is a plant that discharges treated effluent into a catchment permitting area (see section 96FA of the Water Industry Act 1991), and(b) the sewerage undertaker has failed to comply with a condition in the environmental permit for the plant imposed in pursuance of subsection (3)(b) of that section,the definition of “excess nutrient pollution” in paragraph (3) is subject to the following modifications.(3B) In a case where the condition relates to the total nutrient pollution discharged by the plant specifically, references in that definition to the “upgrade date” are to be read as the “applicable date”.(3C) In a case where the condition relates to the total nutrient pollution discharged by all plants that discharge into the associated catchment area, that definition is to be read as if—(a) in the words before paragraph (a), after “by the plant” there were inserted “and all other plants that discharged into the associated catchment area for that plant”,(b) in paragraph (a), for “upgrade date” there were substituted “applicable date”, and(c) in the words after paragraph (b)—(i) for “that it” there were substituted “that both it and those other plants”, and(ii) for “upgrade date” there were substituted “applicable date”.(3D) For the purposes of paragraph (3) as modified by paragraph (3B) or (3C), the “applicable date” is to be determined in accordance with section 96FA(6)(a) of the Water Industry Act 1991.”Member’s explanatory statement
This amends the provision to be inserted into the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 by clause 160 so that provision functions in relation to catchment permitting areas, introduced by the second amendment in my name to clause 158 at page 188, line 22.
247YYC: Clause 160, page 194, line 10, leave out “96C” and insert “96C(1) or (2)”
Member’s explanatory statement
247YYD: Clause 160, page 194, line 17, at end insert—
““catchment permitting area”;“environmental permit”;”Member’s explanatory statement
This amendment is consequential on the amendment to clause 160 at page 193, line 36.
Amendments 247YYB to 247YYD agreed.
Amendment 247YYDA not moved.
247YYE: After Clause 218, insert the following new Clause—
“Second homes for council tax purposesThe Secretary of State may by regulations permit, through a licensing scheme, local authorities to set a limit on the proportion of dwellings which, at the point of sale, become second homes for council tax purposes.”
In moving Amendment 247YYE, I will speak also to Amendment 288B; both are in my name and that of my noble friend Lord Foster of Bath and relate to second homes. They would give a power to the Secretary of State by regulation to permit local authorities, through a licensing scheme, to set a limit on the proportion of dwellings which, at the point of sale, become second homes for council tax purposes.
We have heard about deal on Report on the Bill about the housing crisis, not least a crisis in the availability of truly affordable homes. Government data shows that 7,644 social homes were built in England in 2021-22, while 24,932 were sold under right to buy and 2,757 were demolished. The crisis is particularly bad in rural and coastal areas.
In 2019, the Rural Economy Select Committee, chaired by my noble friend Lord Foster of Bath, noted that, in rural areas, house prices—and so, in turn, rents—are higher than in urban areas, while incomes are lower. That disparity is widening. In Cumbria, for example, average house prices are 12 times average household incomes. As a result, it is ever harder for people of working age to live and work in rural and coastal areas, with an inevitable impact on their local economies.
There are three principal causes: too few genuinely affordable homes being built; second homes taking over full-time residential homes; and, the most rapidly increasing problem, short-term lets taking over the long-term private rented sector. In Cumbria, for example, there are currently 232 long-term rental properties available, compared with 8,384 short-term lets.
My noble friend Lord Foster of Bath, who is unable to be here today, lives in Suffolk, close to the popular seaside town of Southwold. With the recent growth in second home ownership and the rapid rise in short-term lets, of the 1,400 properties in Southwold, only 500 have full-time residents, while 500 are second homes and 400 are short-term lets. Two-thirds, therefore, are not permanently lived in.
House prices and long-term rents have risen steeply. Local families are being forced out and those working in the local tourism industry cannot find or afford local accommodation. As a result, many of the bars, restaurants and hotels now have staff vacancies. As a local councillor said recently, soon people will not
“want to visit the soulless toy town where no one lives any more”.
In Committee, my noble friend Lord Foster of Bath and I proposed amendments to address the issues of short-term lets and second homes. In particular, we proposed separate use categories for both. Other noble Lords also addressed these issues, with a range of similar proposals. In response, the Government promised to take action. Indeed, as a result, consultation has been taking place on proposals to introduce a short-term let registration scheme, which would allow councils to apply health and safety regulations across the guest sector.
Consultation has also been taking place on establishing a separate use class, C5, for short-term lets. I welcome these proposals and the intention of using permitted development rights so that areas of the country where short-term lets are not an issue are not impacted. Where they are, a planning application will be required for change of use to a short-term let and councils can decide whether, given local circumstances, it should be approved.
Clause 218 of this Bill provides for the implementation of the registration element of these proposals. These Benches welcome the proposals and hope they will be implemented quickly. However, this completely ignores those second homes not being used as short-term lets. They should be known as “second homes for council tax purposes”. On the latest figures, there are some 257,000 such properties in England; although not as rapidly as short-term lets, the numbers are growing year on year.
I expect that the Minister will point to the way in which neighbourhood plans can be used to address this issue and the new power for councils to further increase council tax on second homes. While undoubtedly welcome, these measures do not give affected local councils sufficient powers to address the problem. Can the Minister explain why the Government, having belatedly agreed to address the short-term lets problem, are failing to do the same for the second home problem?
The two amendments in this group in my name and that of my noble friend Lord Foster of Bath propose a solution. We could have adopted a similar approach to the one the Government have proposed for short-term lets and if, in response, the Minister suggests the Government plan to explore that route, we will be happy to support it. However, following a substantial discussion with local councils and councillors, we propose a new approach: a licensing approach available for those councils which choose to adopt it.
It is a simple approach. By restricting its application to the point of sale, it does not impact existing homes. We recognise that it would require a person seeking to buy a property to be used as a second home—not intended to be a short-term let—to conduct inquiries into the likelihood of a council agreeing to a licence. That is no more onerous than many other pre-purchase searches and no different to that required for a use class order change to short-term let. But it would give much-needed powers to councils which face problems caused by second homes. I hope the Minister is in listening mode on this matter.
Finally, on second homes and council tax, can the Minister explain what steps the Government will take to resolve their failed attempt to close the tax loophole? For some years many of us have been drawing attention to the situation whereby second home owners avoided paying either council tax or business rates. They did this by claiming their property was available for rent—and so eligible for business rates—but then ensured that little rental took place and so the business income fell below the threshold, so no tax was paid.
Last January, so-called tough new measures were introduced for eligibility requirements: making the property available for rent for 140 days a year and proving it had been for at least 70 days. However, as the Daily Telegraph reported earlier this month:
“Holiday let council tax crackdown backfires—costing local authorities millions”.
The tough measures have not prevented more and more second home owners registering as a business and then claiming 100% business rate relief. Two years ago, 73,000 such properties were on the business rates list in England; the figure now stands at over 85,000. Can the Minister tell the House what further steps will be taken to address this problem? I beg to move.
My Lords, the percentage of second homes in so many parts of the country has had such a devastating impact on communities. We heard about that in great detail in Committee and had many examples from all sides of the House. We noted that it particularly impacts on rural and coastal communities. I am also concerned about the tax loophole and that so many second home owners avoid paying either council tax or business rates. This is clearly an anomaly and needs to be resolved.
The amendments in the names of the noble Lords, Lord Foster and Lord Shipley, would be an important next step in tackling this. We too welcome the licensing steps already taken but, if we are going to tackle this, we need to go one step further. We look forward to hearing the Minister’s response to the amendments proposed.
My Lords, Amendments 247YYE and 288B, in the name of the noble Lord, Lord Foster, and spoken to by the noble Lord, Lord Shipley, bring us to the often sensitive issue of second homes. We recognise that large volumes of second homes or short-term lets can become an issue when they are concentrated in particular areas. That is why the Government have taken decisive action. We committed to introduce a registration scheme for short-term lets in England through this Bill and consulted on the design of the scheme earlier this year. At the same time, we also consulted on proposals for a new short-term let use class with associated permitted development rights. Further announcements on both consultations will be provided in due course.
We introduced higher rates of stamp duty for second properties in 2016 and a new stamp duty surcharge for non-UK residents in 2021, and new measures to strengthen the criteria for holiday lets to be eligible for business rates came into effect in April. Furthermore, this Bill will give councils the discretionary power to apply a council tax premium of up to 100% on second homes.
The noble Lord, Lord Shipley, asked why we are not making further changes in respect of second homes. Through the Levelling-up and Regeneration Bill and other measures, the approach we are taking is to boost housing delivery more broadly to make more homes available, including in those areas where there are high concentrations of second homes. Second homes that are additionally let out may fall within the short-term let use class that I mentioned where they meet the definition.
It might be helpful if I say a little more about the Government’s approach to first-time buyers in particular. We recognise the hardship people face when they cannot find a home of their own. Our £11.5 billion affordable homes programme will deliver thousands of affordable homes to rent and buy right across the country. The Government are committed to helping first-time buyers to get on to the housing ladder. We operate a range of other government schemes, including shared ownership and the lifetime ISA and we continually keep options to support first-time buyers under consideration. We are also committed to ensuring that enough homes are built in the places where people and communities need them and our first homes scheme is providing new discounted homes prioritised for local first-time buyers.
The noble Baroness, Lady Taylor, referred to the common perception that some second homeowners may pretend to let out their property in order to benefit from small business rate relief. That is why the Government introduced, from April this year, new criteria for holiday lets to show that they have been let for at least 70 days and have been available for at least 140 days in the previous year. If they are entitled to receive small business rate relief as a holiday let operator, that is perfectly appropriate. If a property cannot demonstrate those criteria, it will be liable for council tax.
In my judgment, it is imperative that we allow time to assess the impact of the actions I have described that the Government have already taken. It is for that reason that we are resisting the amendment. However, I hope I have provided sufficient reassurance that we are already taking action to address the issues raised, and I hope the noble Lord, Lord Shipley, will feel able to withdraw the amendment.
My Lords, I thank the Minister for his reply, which was as I anticipated. It is clear that we are going to be returning to this issue again and again while the Government fail to build enough affordable housing for people to live in, particularly in coastal and rural areas under great stress. For the moment, though, I beg leave to withdraw the amendment.
Amendment 247YYE withdrawn.
Schedule 20: Pavement licences
248: Schedule 20, page 459, line 8, at end insert—
“1A In section 1 of the 2020 Act (pavement licences), in subsection (5), at the end insert—“or any part of a vehicular highway which is adjacent to such a highway.””Member's explanatory statement
This amendment enables the pavement licence to include part of the carriageway, where the carriageway is adjacent to, for example, an eligible pavement. This would enable a licensing authority to grant licences which occupy part of the highway shared between space for pedestrians and vehicles.
My Lords, I shall also speak to the other amendments in this group that are similarly in my name, and I will give more than a nod to the other amendment in the group.
When it comes to pavements and pavement licences, the Bill has done nothing for pedestrians, those with access needs or those who simply want to rely on the primary purpose of the pavement. The primary purpose of the pavement is to get from A to B, be that for work, leisure, hospital appointments or whatever it may be—to go about one’s business on a clear, uncluttered, maintained pavement. I will not speak to all the amendments in this group but I ask the Minister to respond to all of them because each in turn raises important points when it comes to our ability, as members of our local communities, to use the pavements in our area.
The amendment that I want to spend most time on is Amendment 252, which addresses the consultation period when businesses seek to acquire a pavement licence to run part of their business on the pavement in front of their properties. The Government argue that this consultation period has been doubled from seven days to 14 from the Business and Planning Act we passed during Covid. In fact, what has happened is not a doubling of the consultation period but a halving of it, from 28 days in the Highways Act, which was always the period before Covid.
The seven-day consultation period is the wrong comparator to look at. When we debated the Business and Planning Act, it was clear that we were considering the balance between the needs of businesses and those of the local community. The need of businesses at that time was to acquire a pavement licence and to be able to have a business at all, as a consequence of the social distancing rules under Covid. That is in no sense the comparator now, which is simply, as it was pre Covid, for a business to extend its services on to the pavement, thus having additional business, not just a business or no business.
So it seems completely clear, fair and equitable, balancing the needs of businesses with those of all the members of the community, that the consultation period should revert to what it was pre Covid, in order to enable all members of the community to engage in a consultation when such pavement licences are sought. There are obvious and particular accessibility needs for certain groups within a community, and it is self-evident that to halve that consultation period from 28 days to 14 effectively excludes many people from participating in that consultation. Effective exclusion from consultation does not in any sense sound like levelling up.
In Amendment 252 I propose what I believe is a fairer compromise: to take the 28 days down to 21. The Minister may well argue, “What’s the difference between 14 days and 21?” It may well be the difference between individuals and large sections of our community being able to participate in that consultation and their being effectively excluded from such participation.
I will touch briefly on Amendments 256 and 257, which are linked in respect of the question of access and enabling people to travel from A to B, as the pavement was always intended to do. What is the Government’s problem with simply requiring businesses that may well have gained a licence to tidy up and pack away furniture from the pavement when it is not in use? Similarly, when it is in use, there should be some form of reasonably costed demarcation, be it tactile markings or physical barriers, to surround that seating area, which would benefit both those using the pavement and those using the seating area.
I fear that the Minister does not have much for me today, but I am afraid that in those circumstances the Bill will lead to a less accessible pavement. It will lead to people finding it increasingly difficult and sometimes impossible to access their local area and get where they need to go. It will mean local authorities missing out on potential income from the additional profits that businesses will be able to make on those pavements—when I say “those pavements”, I think we all agree that they are our pavements that our taxes have paid for.
I urge the Minister to think again and strongly to consider the amendments, not least the ones concerned with accessibility and the one that refers specifically to consultation, which would enable all the members of our community to participate fully in the question of whether they believe a pavement licence is good for their local community. I beg to move.
My Lords, I commend the speech of my noble friend Lord Holmes of Richmond. Obstructions on the pavement are an issue not just for those with a visual impairment but for a wide variety of other users of the pavement. He rightly calls for a better balance between the needs of business on the one hand and the needs of pedestrians on the other, and he deserves a sympathetic response from the Minister.
Amendment 258, in my name and that of the noble Lords, Lord Faulkner and Lord Hunt, and the noble Baroness, Lady Northover, would introduce the requirement for all pavement licences to be smoke-free and so to contribute to the Government’s worthy ambition to make England smoke-free by 2030—an ambition we are currently on track to miss by nine years, according to Cancer Research UK. The House has previously expressed strong support for such a measure. Under the current pavement licensing rules, councils have two options on pavement smoking: to implement the national condition to make reasonable provision for seating where smoking is not permitted, or to go further and make 100% smoke-free seating a condition of licences at local level.
I have previously welcomed the current requirement, secured only after pressure from Members in both Houses who objected to the original proposal, which had no provision for non-smokers. But, although where we are is better than what the Government originally proposed, it does not go far enough.
When this amendment was debated in Committee, my noble friend Lord Howe defended the current arrangement, stating that
“it is important to allow local areas to make the decisions that are right for them”.—[Official Report, 22/5/23; col. 661.]
I note in passing that, when I asked for that flexibility this morning on planning fees, my noble friend robustly rejected it. Although I understand the principle behind this position, in practice it places a significant burden on councils, which must provide reasonable justification for introducing a smoke-free condition on a case-by-case basis.
This is the point made by local councillors from the London Tobacco Alliance, who this week have written to the Secretary of State for Levelling Up, Housing and Communities, calling on the Government to introduce a national 100% smoke-free pavement licence condition. This would reduce the amount of bureaucracy faced by councils and help to protect non-smokers, especially children and of course those who work in the hospitality industry, from toxic tobacco smoke.
This amendment is also supported by the Local Government Association, the cross-party national membership body for local authorities, which has said that 100% smoke-free pavement licensing
“sets a level playing field for hospitality venues across the country and has a public health benefit of protecting people from unwanted second-hand smoke … If smoking is not prohibited, pavement areas will not become family-friendly spaces”.
Under the current system, implementation of smoke-free conditions is highly inconsistent across the country, meaning that non-smokers, children and hospitality staff will continue to be exposed to second-hand smoke. That is why Dr Javed Khan OBE’s independent review of Smokefree 2030 policies, commissioned by DHSC and published last year, recommended that smoking be prohibited on all premises, indoors and out, where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present.
This recommendation has strong public support, with two-thirds of the public polled in 2022 saying they wanted smoking banned in the outdoor seating areas of all restaurants, pubs and cafés. Fewer than one in five opposed a ban. This was a large sample of more than 10,000 people, carried out by YouGov for Action on Smoking and Health. Some councils are doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. The experience of these councils shows that smoke-free seating has proved popular with the public, leading to high levels of compliance, and has not been shown to cause a decrease in revenue.
When South Tyneside Council surveyed opinion on 100% smoke-free seating among local café proprietors, it did not receive a single objection. A number of proprietors were very supportive of the more consistent approach, which is easier to comply with and requires little or no enforcement. The director of public health in South Tyneside said:
“Creating and supporting smokefree environments benefits individuals, the wider community and businesses—supporting those trying to quit the habit, promoting positive role modelling for children and young people, and reducing the harm from second-hand smoke”.
This amendment is an opportunity to implement Dr Khan’s recommendations and take a small but important step forward towards a smoke-free 2030. I hope that my noble friend, who took a keen interest in preventative medicine when he was a Health Minister, feels able to support this modest but popular amendment. If, by any chance, the dreaded word “resist” is at the top of his folder, can he say whether primary legislation is required if, in the future, the House wants to revisit this issue if we do not achieve this progressive measure this evening?
I express support from these Benches for the amendments in the name of the noble Lord, Lord Holmes, which he put very cogently. Pavement licences were introduced in the pandemic but have become a feature of our high streets, so we must make sure that approaches are inclusive, addressing the needs of those with disabilities or those, for example, with children in pushchairs.
I put my name to Amendment 258 and I am pleased to be speaking in support of it. It is led by the noble Lord, Lord Young of Cookham, who made the usual very strong case. It is disappointing to see that the Government have not taken the opportunity presented by the Bill to make all pavement licences smoke-free, as recommended—as we have just heard—in last year’s Khan review of tobacco policies. This is despite the clear majority of adults in England supporting a smoking ban in outdoor seating areas of restaurants, pubs and cafés. In areas such as Manchester, where 100% smoke-free pavement licences have been implemented, they have had great success and have been very popular among businesses and those using these facilities.
The public health case for this policy is extremely clear; there is no risk-free level of exposure to second-hand smoke. As the noble Lord, Lord Young, pointed out, the noble Earl was always part of the campaign against tobacco harm, and he is well aware of this. Smoke-free pavement licensing would also help to protect hospitality workers. The smoking ban of 2007 protected workers from indoor exposure to tobacco smoke. The noble Earl—I remember well—helped to put this in place. It is time we took action to protect them from outdoor exposure as well.
In Committee we laid out the case. As I have said before, the outside has now, in effect, become the new inside. Therefore, the rules that apply inside should fully apply outside. It is high time we started to introduce more spaces where non-smoking is the norm. This measure would represent an important step towards a smoke-free future, which is what the Government theoretically are aspiring to. I urge the Government to accept the amendment. If they do not, I am sure—the noble Earl will know this—this will return in the future.
My Lords, I also added my name to Amendment 258 in the name of the noble Lord, Lord Young of Cookham. I commend his speech and that of the noble Baroness, Lady Northover. I will also say, in passing, how much I support the points made by the noble Lord, Lord Holmes of Richmond, when moving his amendment and speaking to his others. The need to protect the users of pavements is great and it is very much consistent with what we seek to do with smoke-free pavement licences.
When the regulations were extended in 2021 at the height of the Covid epidemic, I tabled an amendment in this House to regret that the regulations
“were not revised to take account of the evidence of the benefits of 100 per cent smoke-free pavement licences”.
This was passed with strong support from across the House and a very substantial majority. In his response to the amendment, the Minister at the time, the noble Lord, Lord Greenhalgh, said:
“The impacts of passive smoking are very much a key concern and a top priority for this Government, which is why we should look to tackle this issue strategically. We will be a publishing a new tobacco control plan later this year, setting out our ambitious plans for England to be smoke free by 2030”.—[Official Report, 14/7/21; col. 1844.]
Although I welcome the tobacco control measures announced by the Government earlier this year, they just do not go far enough, as the noble Baroness, Lady Northover, said. I am concerned that the Government are missing, in the Bill, an opportunity to start delivering on the Smokefree 2030 ambition. Can the Minister confirm that the impacts of passive smoking are still a “top priority” for the Government?
If we want to create a smoke-free society, we need to create environments that support smokers to quit and help those who manage to quit to stay smoke-free. This means limiting people’s exposure to smoking and second-hand smoke in public places, as we did with the ban on smoking in indoor public places in 2007. That was a measure the noble Earl played such a distinguished part in bringing about.
We know, for example, that relapse is common among smokers trying to quit, with many smokers taking as many as 30 attempts before they successfully quit long term. Being around people smoking is a key factor in determining whether someone relapses and whether young people take up smoking in the first place. I note that 100% smoke-free seating is easy to understand, simple to implement and popular with the public. Unfortunately, the current approach is none of those things. Revising the regulations to require 100% smoke-free pavement licences would be a positive step towards delivering the Government’s vision of a smoke-free 2030 for England.
My Lords, I am a non-smoker. I have never smoked. I have absolutely no intention of smoking. But I would point out to my noble friend on the Front Bench something on which I imagine he is well briefed. Local authorities already have the powers at their discretion to regulate smoking in licensed premises and on pavements outside pubs, bars and restaurants with exterior tables and seating. My noble friend who spoke earlier has been in local government, as have I. The powers are there already. In my judgment, it is for the local people to decide—not for some all-embracing Government above to dictate. There is no need for further central government legislation. The licence holder is already legally required to make sensible provision for seating where smoking is not permitted.
The noble Baroness who spoke earlier said, “Well it’s logical, if it’s banned internally then obviously you ban it externally”. May I suggest to the noble Baroness that external smoke is totally different? It dissipates far quicker outside than it does inside. Outside, it ends up becoming highly diluted and disappears into the atmosphere very quickly. Having said that, it is right that licence holders should remember to ask people to behave properly in the interests of those seating nearby, particularly children.
Frankly, this Bill should not be used as a back-door route to try to ban smoking in public places. We would be threatening pubs and cafés that, if they did not ban smoking outside their premises, they would be refused a licence. That would be thoroughly disproportionate.
As far as I know, my Government have no plan to ban outdoor smoking. It has rejected similar amendments in the past. Excessive regulation could even lead to some pub closures and job losses. This would be to no one’s benefit. Again, as a non-smoker, I find encouragement that the figures for people who smoke seem to go down every year. We should think back to what it was like in the 1970s. Would we have thought that the policies we have implemented would have achieved the current rate? Last year, 13.3% of the population were smoking; on the latest figures, this is down to 12.7%. So the reduction is there—it is happening—and certainly, to use this particular Bill to interfere with what local authorities want to do in their own area is, in my view, totally wrong.
My Lords, I too support the amendments tabled by the noble Lord, Lord Holmes of Richmond. I am now caring for my mother and am a grandfather to very young grandchildren, so I have renewed my acquaintance with the problem, as he said, of seeking to go from A to B when there are so many obstacles in the way. His amendments go to the heart of the problem by recognising that pavements are for people to walk on.
I am also delighted to support the noble Lord, Lord Young of Cookham, and other noble Lords in their amendment. I disagree wholeheartedly with the noble Lord, Lord Naseby. First, I do think that the health gain from this measure would be considerable. We are behind the curve in reaching the smoke-free target. Secondly, I disagree with him about the dissipation of smoke. Anyone who has had to walk past pubs where people are smoking outside would say it does not dissipate quickly enough. Thirdly, I do not think it would harm the pub trade; I think it would enhance it because, frankly, going through a fog to get into a pub is not very attractive at all.
On a more general point, the noble Lord, Lord Young, made it clear that he saw this as a popular public measure. I totally agree. I was a member of the Cabinet committee which basically tore up our 2005 manifesto because it was not strong enough. The result of that very rare rebellion by a Cabinet committee led to the ban on smoking in public places. And it was proved right—it was very popular and very effective.
I also recall moving the amendment on banning smoking in cars where children are present. That was overwhelmingly popular. When it went back to the Commons, the Government agreed. So many of their own Back-Benchers supported it because they had had such a lot of strong messages.
I have no doubt whatever that this will be a very positive and popular measure. I hope that the noble Earl will be able to say something positive about it.
My Lords, this may be the fourth occasion in the House on which I have debated pavement licensing. There is obviously a reason for that; we have not got the regulations quite right. As the noble Lord, Lord Holmes, raised in his amendment, there is a natural conflict between the use of the public highway as an extension of a licensed premises, restaurant or café, and the use of it by the public to get from A to B. I totally agree. At the very earliest iteration of these regulations about pavement licensing, both he and I proposed that barriers ought to be in place to restrict the use of the highway so there would be plenty of room for pedestrians and those in wheelchairs or pushing buggies to get through safely. I am still concerned that that regulation is not part of the licence for use of the public highway.
The second important issue is about smoke free. All I will say is this: it needs to be smoke free. This is a health issue. We need to take every opportunity we can to ensure that there are no opportunities for people who do not wish to inhale somebody else’s smoke to do so. I agree with all noble Lords—bar one—who have spoken on this issue.
Lastly, I will repeat the question that I have raised before. If we are permitting businesses to use the public highway, will the local authority that has to maintain the public highway have the right to require a rent for its use? This would enable continued good maintenance of pavements for people.
My Lords, I am very grateful to the noble Lord, Lord Holmes, for his great persistence and determination regarding common-sense regulation of the use of pavement licences. He spoke powerfully on this issue in Committee and has done so again today. We all recognise the significant boost that new uses of our pavements have given to our high streets and we support that, but it is of course important that the balance is right. Indeed, most of the amendments in this group do give some balance.
Amendments 249 and 250 relate to charging for maintenance and cleansing of high streets. We very much support the principle that the applicant should contribute—it goes along with the “polluter pays” idea—but we should think about the fact that this should really be for local determination. For example, where a local authority is trying to encourage regeneration, it may not want to implement that as part of its process of encouragement, but we certainly support the basic principle behind the noble Lord’s amendment.
Amendments 251, 252 and 255 all refer to the consultation process. We support them, and the noble Lord, Lord Holmes, set out eloquently the reasons why we might want to extend the consultation period. I certainly agree. Thinking of my own high street, there is a very active business and community forum that works together to improve the high street, and it may well want to consult on its own response to such a proposal. Twenty-one days is not an unreasonable period to enable it to do that; it might be very helpful.
We are a little concerned about Amendment 253, as a general principle of planning puts the onus on objectors to raise objections during the consultation, so they can be duly considered, alongside officer advice, in dealing with the application. I am not totally convinced that automatic rejection of an application if there are no responses is the right answer. In response to the noble Lord’s amendments in Committee, we were told that it is already the responsibility of local authorities to maintain the free flow of pedestrians and road users. If the Government do not accept this amendment, perhaps they might consider tightening up the wording of the guidance on pavement licences to take greater account of the issues the noble Lord raised. It may be that the wording is not quite tight enough.
We support Amendments 256 and 258 in the names of the noble Lord, Lord Young, my noble friends Lord Faulkner and Lord Hunt and the noble Baroness, Lady Northover. Amendment 256 covers the clearing away of furniture when areas are not in use, which is particularly important. My noble friend Lord Hunt referred to free movement along pavements. Of course, in a night-time economy furniture can get thrown around and left in all sorts of places where it should not be and cause real obstructions for other pavement users.
Amendment 258 would ensure that smoking and vaping does not impact on others. At the moment, pavement cafés are often marred for non-smokers, who find them difficult to use because smokers tend to see them as their own territory. I am afraid that I do not agree with the noble Lord, Lord Naseby, on this one either. Going into a pub garden, for example, on a warm summer evening is often a great feature of our life in this country—that is, when it is not marred by rain. But it can also be marred by clouds of cigarette smoke or vape smoke, so we have to think differently about that. There is also the issue of the cigarette ends that smokers leave. I have never understood why smokers do not think of cigarette ends as litter. The area outside a pub is often absolutely covered in cigarette ends. So there is the question of having smoke-free areas where there are cafés, pubs and restaurants.
We also strongly support Amendment 257, which would ensure appropriate marking and barriers for outside eating areas. This is particularly important not just for members of the disability community but for all pavement users, particularly those with small children, who, as my noble friend Lord Hunt said, might be distracted as they are walking along. It needs to be clear where there are areas with people sitting and eating.
So, as I said, we are very grateful to the noble Lord, Lord Holmes, for raising these issues again and I look forward to hearing the response of the noble Earl.
My Lords, in Amendment 248 my noble friend Lord Holmes of Richmond brings us back to the use of roads adjacent to pavements that have been granted a licence. I can assure him that there are already clear processes by which a local authority can consider the pedestrianisation of a street, including to facilitate outdoor dining, with vehicular access a relevant consideration in those processes: this is not an issue that will be glossed over. Pavement licences can then be granted if the conditions are seen to be right and, in recent years, we have seen the success of this in practice across the country.
The noble Baroness, Lady Pinnock, returned to the question of new powers for local authorities to charge for the use of the pavement. She is probably aware that the Business and Planning Act 2020 does not give local authorities a specific power to charge ongoing rent for the use of the pavement, and the aim behind that measure is to support businesses by making it significantly cheaper to gain a licence, compared to the previous route. The measure fully funds local authorities’ costs for providing this service: we are not looking to impose additional costs on businesses at a time of rising costs.
My noble friend’s Amendments 249 and 250 concern the fees to be charged for pavement licensing. The Government feel very strongly that we must keep costs reasonable and consistent for businesses. At a time when their costs are rising, we should not place additional financial burdens on businesses still recovering from the pandemic. The fee caps in the Bill have not been arrived at by accident but are the result of close work with local authorities, businesses, leaders from the hospitality sector and communities. They reflect the actual costs of processing, monitoring and enforcing pavement licences. I also make the point, on Amendment 250, that the direct attribution of profit to the granting of a licence would not be a simple matter.
As for my noble friend’s proposal in Amendment 253 for deemed rejection rather than a deemed granting of a licence in the event of no decision being made within the determination period, I say to him that it would not be right to punish applicants for delayed local authority decisions. Deemed consent encourages local authorities to make decisions while ensuring that the local and national conditions which would otherwise have applied are applied and can then be enforced, including by the removal of the licence.
My noble friend’s Amendment 251, changing the start of the consultation period to the time at which a receipt has been sent to the applicant, would add an additional and, in our view, unnecessary step and potentially delay the process.
Amendments 252 and 255 would likewise increase both the consultation and determination periods that apply. We have listened carefully to the views of local authorities, communities, businesses and other concerned organisations and believe that our proposals strike the right balance, protecting the ability of everyone to be heard while ensuring that businesses receive a decision in a reasonable timeframe.
I turn to my noble friend’s Amendments 254 and 256 dealing with the free flow of pedestrians and the conditions which may be imposed by a licence. The Business and Planning Act 2020 already requires that local authorities take this into consideration, preventing licences being granted where they would preclude entry on to or passage along the highway, or normal access to premises adjoining the highway. On Amendment 256, the Act already provides powers for local authorities to impose conditions such as these, and we are anecdotally aware of local authorities having done so. As such, we do not consider that specific reference to the discretion for local authorities to do so is needed. These are rightly matters determined locally.
The noble Baroness, Lady Taylor, suggested that the Government’s wording in this area was not quite tight enough. We have made it clear in the pavement licence guidance that, when setting local conditions and determining applications, local authorities should consider the need for barriers to be put in place to separate furniture from the rest of the footway so that people who are visually impaired can navigate around the furniture. As recommended by the RNIB, we have highlighted that best practice involves using measures such as colour contrast and a tap rail for long cane users. However, this will need to be balanced to ensure that any barriers do not inhibit access for other street users, such as people with mobility impairments, if they are creating a further obstacle in the footway.
On Amendment 257, I thank my noble friend for raising the very important issue of accessibility and the impact of pavement licensing on disabled users of the highway. In considering whether to grant a licence, Section 3(7) requires particular regard to be given to the needs of disabled people and to guidance on this matter published by the Secretary of State. That guidance, developed in close collaboration with the Guide Dogs for the Blind Association and the RNIB, includes details of minimum accessibility width considerations for disabled persons. We believe that the determination as to the best way to meet the needs of disabled persons is best made locally, taking account of the specific circumstances for that pavement, particularly since physical barriers may on occasion hinder accessibility, as I have already alluded to.
Finally, Amendment 258, in the name of my noble friend Lord Young of Cookham, would create a national condition banning smoking in pavement licensed areas. Of course I understand very well the strength of feeling expressed by my noble friend and a number of noble Lords on the nuisance caused by the smoking of tobacco. Both my noble friend and the noble Baroness, Lady Northover, called for pavement licensing to be made smoke-free. My noble friend stressed the need to protect the interests of non-smokers in particular.
I can tell the noble Lord, Lord Faulkner, that the Government fully recognise the importance of this issue for public health, but we also recognise the need to do what is reasonable and proportionate in all the circumstances. Our guidance already makes it clear that pavement licences require businesses to make reasonable provision for seating for non-smokers to ensure choice for customers. It is also clear that ways of meeting this requirement could include clear “No Smoking” signs, the removal of ashtrays in smoke-free areas and a minimum 2-metre distance between smoking and non-smoking areas, wherever possible. Local authorities are also able to consider setting their own conditions, where appropriate, and where local decision-makers believe it is reasonable to do so. We are aware that a number of councils across the country have put in place local conditions with the effect that noble Lords are calling for. As my noble friend Lord Naseby rightly said, it is perfectly possible for councils to do this, and we think it is better for decisions of this sort to be taken locally so that individual circumstances are taken into account.
I recognise the intention behind my noble friend’s amendment, which is a benign intention. However, I think he would concede that this is an issue wholly different in kind from that of planning fees, where it is incumbent on government to ensure financial fairness across the country. We consider it right that this is a decision made locally, taking into account the representations received, rather than imposed nationally.
Well, my Lords, the Government will continue to listen to the Local Government Association very carefully in this connection. I can only say that we are not persuaded yet that this move would be the right one, having consulted extensively with all stakeholders involved.
My Lords, I thank everyone who has taken part in this debate. It is clear that there is cross-party support for these measures concerning pavement licences and, indeed, smoke-free areas on such granted licence areas.
I thank my noble friend the Minister for his response; he gave me nothing, but he did it in a very charming way. It is always a pleasure working with him.
It is clear from our deliberations in Committee and on Report that the levelling-up Bill is riddled with inconsistencies and is incoherent as a totality. In some parts of the Bill, the Government say there should be a national approach; in other parts, when it comes to smokers, not so. Only this afternoon in the previous but one group, we heard a full-throated commitment from the Minister and, indeed, the Government to the polluter pays principle but here—not so.
When it comes to pavement licences and the use of the pavement, I am afraid that there is little that speaks to levelling up; it is more holding back and tripping up. However, with the cross-party support I believe we have for the measures—reasonable, balanced, equitable measures—proposed in my amendments, I believe that we will be returning to these issues. For now, I beg to withdraw the amendment.
Amendment 248 withdrawn.
Amendments 249 to 258 not moved.
Consideration on Report adjourned.