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Levelling-up and Regeneration Bill

Volume 832: debated on Wednesday 13 September 2023

Report (7th Day)

Relevant documents: 24th, 39th and 41st Reports from the Delegated Powers Committee. Scottish, Welsh and Northern Ireland Legislative Consent sought.

My Lords, we have a very busy day ahead of us on this Bill. Given the large number of topics, and the fact that we need to try to get through as many of them as possible, I respectfully ask and remind all Members to be as brief as possible today. Thank you.

Clause 120: Fees for certain services in relation to nationally significant infrastructure 20 projects

Amendment 225

Moved by

225: Clause 120, page 152, leave out lines 21 to 26

Member's explanatory statement

This amendment removes subsection (4) of the new section 54A of the Planning Act 2008, being inserted by Clause 120, which contains a restriction on prescribed public authorities from charging fees where the advice, information or assistance is provided to certain excluded persons.

My Lords, I shall speak also to the other 15 government amendments in this group. Amendment 225 to Clause 120 of the Bill, along with Amendments 226 and 227, are minor and technical. In developing NSIP applications, applicants are required to consult statutory consultees who provide expert advice to ensure that infrastructure is delivered in a way that supports our objectives, including those around enhancing the natural environment, public safety and protecting historic assets.

Clause 120 provides a power for the Secretary of State to make regulations to set up a charging regime for specific statutory consultees to recover their costs for the services they provide to applicants when engaging on NSIP applications. Our policy objective is to ensure that applicants should pay for advice from specific statutory consultees throughout the consenting process, and to support statutory consultees to achieve full cost recovery for their services.

Exemptions in subsections (4) and (6) of the new section inserted by Clause 120 were originally included to ensure that excluded persons were not liable for the costs of advice provided to them, so that regulations could make it clear that the applicant bears liability for such costs. However, through discussions with relevant statutory consultees, it has become clear that these subsections would also prevent applicants being charged where the Secretary of State engages with statutory consultees directly. Therefore, the clause would prevent specific statutory consultees recovering costs requested by an excluded person—even from applicants—in a timely way that supports faster decisions on applications for development consent.

To ensure that the clause delivers our policy aims, I propose that new subsection (4), and in consequence, a number of excluded persons defined in new subsection (6), be removed. The removal of these exemptions is required to achieve our original policy intention, whereby statutory consultees should be able to obtain full cost recovery for the provision of their services in relation to NSIPs, regardless of the person to whom those services are provided.

I now turn briefly to government Amendments 229 and 230. In Committee, we introduced an amendment to allow prescribed bodies named in regulations to charge fees for providing advice or information in connection with applications or proposals under the planning Acts, as defined in Section 336 of the Town and Country Planning Act 1990, which is now Clause 128 of the Bill. In Committee, the noble Baroness, Lady Parminter, eloquently set out on behalf of the noble Baronesses, Lady Young of Old Scone and Lady Hayman of Ullock, that the exclusion in new subsection (3)(b) on charging for advice provided to planning decision-makers could have the effect of inhibiting charging where applicants enter into a voluntary agreement with statutory consultees to provide advice or assistance as part of the planning application.

It is obviously not the intention of the power to disincentivise proactive and early engagement between applicants and statutory consultees or prevent statutory consultees charging where an applicant has voluntarily paid for a premium service—quite the opposite. On larger-scale proposals, there may be a need to have sustained and ongoing engagement with statutory consultees. So, as with the NSIP charging powers, we have listened and are making changes to address the issues raised. Through Amendments 229 and 230, we are changing Clause 128. These changes will have the effect of removing new subsections (3)(b) and (5), which provide for the exclusion. This should allay any concerns over the scope of our charging power and will allow us to work through the model of statutory consultee charging with the sector, through regulations. I should add that we have engaged with Defra, which sponsors Natural England, and the Environment Agency, and they see this amendment as a positive step forward.

All the other government amendments in this group, starting with Amendment 263A, are consequential to the marine licensing cost recovery powers. Clause 214 as introduced, which is now Clause 222, gave the Secretary of State new powers to make regulations which set the level of fees payable for post-consent marine licence monitoring, variations and transfers, where the Secretary of State is the appropriate marine licensing authority under the Marine and Coastal Access Act 2009. We are now extending those powers to Scottish Ministers, where the Scottish Ministers are the appropriate licensing authority under that Act in the Scottish offshore region, to avoid a legislative gap. In conclusion, the amendments are important as they remove any potential uncertainty as to the nature and scope of our cost recovery powers for statutory consultees and ensure that they can be made more effective. I beg to move.

My Lords, I will speak briefly to my Amendment 227A on an issue the Minister has already touched on: enabling statutory consultees, such as Natural England, Historic England and the Environment Agency, to charge both planning decision-makers and applicants for the advice they are required to give. That is, as the Minister noted, a valuable part of the planning system which supports the Government’s aspirations on growth and environmental sustainability.

Currently, this work is funded from statutory consultees’ ordinary budgets, and the growth in planning applications means that more and more money is drained from those ordinary budgets and away from their ordinary and very necessary work. The statutory consultees have tried to become as efficient as possible to cope, but the cost to them is now £50 million a year, and 60% of that is borne by Natural England and the Environment Agency. I declare my interests as a former chairman of Natural England’s predecessor and a former chief executive of the Environment Agency. In effect, that means that the planning system is operating with a hidden subsidy at the statutory consultees’ expense, with the major focus being on the planning proposals which present the greatest potential environmental impact due to their size and location—inevitably, those cost the most money for the statutory bodies to inquire into and report on.

As the Minister said, Clause 120 introduces charging for nationally strategic infrastructure projects, but it does not cover ordinary Town and Country Planning Act casework. I thank both Ministers, the noble Baroness, Lady Scott of Bybrook, and the noble Earl, Lord Howe, for their assiduity and flexibility in discussing that with me and others. They have made some limited concessions, but, at the end of the day, I ask the Government: why is there not a level playing field between Town and Country Planning Act casework and casework for nationally strategic infrastructure projects? That would resolve the issue for the statutory consultees.

My amendment would put charging for casework for town and country planning applications—to give advice to local planning authorities on statutory development plans, environmental assessments and other planning work—on the same basis as the NSIP work, overcoming the issue that is currently problematic. Much as I have examined it—and many are the conversations I have had with both Ministers—I cannot see any logical reason for the charging systems to be different, so I hope that the Government will now accept my amendment.

My Lords, I remind the House of my relevant interests as a councillor and a vice-president of the Local Government Association.

Throughout the debates on the Bill, we have all agreed on the importance of having a plan-led approach to development. Therefore, an effective local authority planning service is key to implementing timely decisions on planning applications. The House of Commons Levelling Up, Housing and Communities Select Committee issued a report on planning reforms earlier this year. The report stated that the National Audit Office found that local authority planning services had been cut by £1.3 billion over a 10-year period to 2020, which equates to a 55% reduction in service spending. That is from the National Audit Office, so we cannot argue with those figures.

A Local Government Association survey in 2022 found that 58% of councils had trouble in recruiting planners—and, in county councils, that rose to 83%. The Royal Town Planning Institute estimates that one in 10 planning officer posts are not currently filled. From my own experience in my council, I know that senior planners are enticed into the private sector, leaving councils less well equipped to deal with complex applications. The enormous stress on planning services has the consequence of putting an additional delay on development, which adds programming problems for housebuilders and developers of commercial units. Amendment 235 in my name and that of the noble Lord, Lord Young of Cookham—who I thank for adding his name to an amendment on issues that we both raised separately in Committee—would insert a new clause to address those practical issues. It would enable a local planning authority to set a level of fee that covers the costs of a planning application.

I appreciate that the Government have agreed to increase planning fees by 35% for major applications and by 25% for all other applications. Of course, that is a step in the right direction. However, nationally set fees fail to take into account regional differences in costs; they also fail to reflect the actual costs of dealing with very complex developments, either very large housing sites or commercial developments.

This national approach to fee setting results in council tax payers subsidising complex planning applications. That cannot be right. The stark fact is that 305 out of 343 local authority planning departments had a deficit totalling £245.4 million in 2020 and 2021. That is a huge sum, where council tax payers are subsidising housebuilding developers, for example, who are well able to meet the costs of a planning application in full.

In addition, of course, there are the Government amendments that the noble Earl, Lord Howe, has spoken about this morning, which are a good step forward in conceding the argument made by the noble Baroness, Lady Young of Old Scone, about statutory consultees being paid for the work that they do—that is right and proper. But this adds to the bill that local authority planning services have to pay and it adds to the cost. All in all, there will be additional costs for the work being done. I think that the Government have made some concessions to the principle that the noble Baroness, Lady Young, has asked about and I support that. I wish that they had gone further, as she argues, but it is one step in the right direction.

I will of course listen carefully to the response from the Minister to Amendment 235, but I feel strongly about this issue. It is not a matter of principle; it is a practical amendment to enable local authority planning services to provide the service that they are required to do and that they want to do, but for which they need the funds to do. If the Minister is unable to concede that principle, I will be minded at the appropriate stage to test the opinion of the House on this matter.

My Lords, I have added my name to Amendment 235, which I proposed in Committee and to which the noble Baroness, Lady Pinnock, has just spoken. Since Committee, the need for it has become more urgent, as reflected in the report of the Levelling Up, Housing and Communities Select Committee in July, which concluded:

“The Government’s reforms to national planning policy will fail if local authorities lack sufficient resources to implement them. The package of support which the Government has outlined does not go far enough to address the significant resourcing challenges which local authorities currently face”.

I support the amendment for two reasons. First, I do not believe that the Government should be controlling the fees charged by planning departments, as a matter of principle. They do not control other local authority fees—building regulations, parking fees, library charges, school meals, swimming pool charges—so why planning? A national cap does not reflect the different circumstances of local authorities.

The case for relinquishing control is made stronger by the aspirations in the levelling up White Paper, with its commitment to

“usher in a revolution in local democracy”.

The revolution is stopped in its tracks by the notion that local authorities should not be free to recover the costs of their planning departments.

In reply to my amendment in Committee, my noble friend the Minister said that

“having different fees creates inconsistency, more complexity and unfairness for applicants, who could be required to pay different fee levels for the same type of development. Planning fees provide clarity and consistency for local authorities, developers and home owners”.—[Official Report, 24/4/23; col. 1003.]

Let me briefly dissect that. As far as local authorities are concerned, they are the ones who sponsored my original amendment. They have since confirmed their continuing support with this statement:

“We support this amendment. Planning fees do not cover the true cost of processing planning applications. In 2020/21, 305 out of 343 local authority planning departments operated in a deficit, which totalled £245.4 million”.

As far as developers are concerned, they already have to cope with myriad different local plans and can well manage different fees. What the developers want are well-resourced planning departments that can effectively process their applications quickly. One of the reasons for the disappointing housebuilding performance is planning delays. The amendment addresses that. As for home owners, I do not think that they know that planning fees are set centrally and they are used to local authorities having different charges for libraries, parking, allotments and the rest. I do not think that they would mind if fees were set locally, as long as they got a good service.

Secondly, I do not think it right that council tax payers should have to subsidise the planning system—the hidden subsidy referred to by the noble Baroness, Lady Young. There are more important calls on those resources, underlined by the financial problems facing Birmingham City Council. The Minister told us that the Government were consulting on increasing the fees, but in the words of the Local Government Association:

“We welcome the Government’s commitment to increase planning application fees. However, our modelling has shown that even if all application fees were uplifted by 35 per cent, the overall national shortfall for 2020/21 would have remained above £80 million”.

In his opening speech, my noble friend referred on several occasions to full-cost recovery for provision of services. That is exactly what this amendment does.

I conclude by quoting the Times, which recently, on 7 July, summed up the position:

“Britain’s planning system is grinding to a halt, with four out of five big applications now being delayed by up to two years.

Official figures show that more than half a million new developments have been delayed during the past five years as threadbare planning departments struggle to cope with even routine cases.

Industry experts said the delays were exacerbating the housing crisis, with developments now taking up to three years to get started. Councils are supposed to give developers a decision on big projects within 13 weeks, but the latest official data shows that only 19% of applications were processed in this time over the past year, down from 57% 10 years ago … Developers say that performance is damaging efforts to tackle the housing crisis and other government priorities such as installing wind and solar farms. They warn that unless the government insists on proper funding for planning departments, the housing crisis will worsen as councils will always choose refuse collections over planning when allocating scarce resources.”

The noble Baroness, Lady Pinnock, has made a powerful case and I hope that the Government will reflect in their reply on the further measures that are now needed.

My Lords, before I talk about the amendments, I take this opportunity, on Back British Farming Day, to pay tribute to and celebrate our wonderful farmers across the country—a big thank you to them.

I draw noble Lords’ attention to my interests in the register: I am now vice-president of the LGA, vice-president of the District Councils’ Network and a serving councillor in both Stevenage and Hertfordshire.

As the Minister mentioned, the government amendments in this group are technical and consequential and I do not intend to comment on them other than to link some of his comments to the other amendments.

My noble friend Lady Young’s Amendment 227A is a sensible proposal that those organisations charged with providing supporting advice to planning applications should be able to recover fees for that advice directly from applicants. For too long, the weight of providing specialist advice has fallen on the public purse or on the budgets of hard-pressed third sector organisations, as my noble friend outlined so clearly. Anyone looking at this from the outside would consider that to be unreasonable. I hope that the Government will consider my noble friend’s amendment and take it seriously. Indeed, the noble Earl, Lord Howe, said that there should be full cost recovery for NSIPs. We need to think about that amendment and the one that I will talk about in a moment and how we create a level playing field in this respect.

Amendment 235 in the names of the noble Baroness, Lady Pinnock, and the noble Lord, Lord Young, seems to me the no-brainer of the Bill. For many years, the LGA has been campaigning for local authorities to be able to charge full cost recovery in relation to the actual cost of processing applications. A government report proposed this in 2010, following a consultation by Arup that demonstrated the extent to which councils are undercharging for planning under the current fixed-fee system. The noble Baroness, Lady Pinnock, quoted the figure, which was from 2021; I expect that it is a lot more now and probably way over £250 million a year.

Of all the problems in the planning system, this seems the simplest to resolve. Over time, it would enable authorities to recruit the number of planners that they need and it would shift the cost burden of planning from the local taxpayer to the developer, who, after all, will receive the benefit of the application. I can only quote from my experience of a major town centre regeneration scheme. There were two years of planning discussions on the scheme and then literally a vanload of papers for the application when it came in, and we have just three planners in my local authority. That shows the kind of pressure on the system. Local authority budgets are more hard-pressed than they ever were, so it is hard to imagine why the Government would not accept that full cost recovery should be a basic principle of planning and that it is up to local authorities to charge their own costs.

The noble Baroness, Lady Pinnock, set out clearly some of the serious impact on planning departments and the noble Lord, Lord Young, referred to the apposite conclusion of the Levelling Up, Housing and Communities Select Committee. As he rightly pointed out, it is a principle of devolution—something that the Bill sets out to espouse—that councils must be able to do their own thing for charging fees. That would enable them to resource their planning departments properly. It seems that again the Government are more interested in protecting the pockets of developers than in protecting the public purse, so if the noble Baroness, Lady Pinnock, chooses to divide the House, she will have our support.

My Lords, Amendment 227A in the name of the noble Baroness, Lady Young of Old Scone, seeks to impose a requirement on the Secretary of State to bring forward regulations under Clause 128 that will enable statutory consultees to charge applicants for their advice on planning applications and consents under the planning Acts. I appreciate that our Amendments 229 and 230 do not go as far as the noble Baroness, Lady Young, might like. However, given the complexity of statutory consultee charging—it is a complex field—in our view it would be unwise to rush into a radically different set of arrangements. The changes that she proposes have the potential to impose financial impacts on applicants, in particular home owners and SMEs, and they could severely affect local planning authority capacity and its ability to make timely decisions. We need to ensure that an appropriate balance is reached with any charging model.

To put that into context, there are around 28 statutory consultees prescribed nationally and around 50,000 applications a year that the big six national statutory consultees comment on. That does not include local statutory consultees, such as highways authorities. Therefore, we will need a system that works for everyone, not just a select few, and this will need to be worked through carefully and collaboratively with the sector. Against that background, I hope that the noble Baroness will see why we are reluctant to rush into the model that she proposes and that she will in fact decide not to move her Amendment 227A on that account.

Amendment 235, in the name of the noble Baroness, Lady Pinnock, would enable local authorities to set their own planning application fees. I understand how important it is for local planning authorities to have the resources that they need to deliver an effective planning service. On 20 July, we laid regulations, as she mentioned, that will increase planning fees by 35% for the major applications and 25% for all other applications. This is a national fee increase that will benefit all local planning authorities in England. In addition to the 35% increase, local planning authorities may charge fees for providing pre-application advice or using pre-planning agreements for major schemes. Fee levels for those services are set by individual local planning authorities. It is important to factor that point into noble Lords’ consideration of this issue.

The Government do not believe that enabling local planning authorities to vary fees and charges is the way to answer resourcing issues, for several reasons. First, it does not provide any incentive to tackle inefficiencies—indeed, the opposite is true. I am not sure that I heard that point addressed either by my noble friend or by the noble Baroness, Lady Pinnock. Secondly, I have to come back to the point that the Government argued in Committee. Having different fees between local authorities would be bound to create uncertainty and, perhaps more importantly, unfairness for applicants. We have to be cognisant of the need for fairness. It is all very well for my noble friend to say that applicants will not notice if fees vary between areas. It is a question of doing what is right for all parties and not just feeding the wishes of local authorities in this area, understandable as those are, as I said. Also, at an extreme, if fees are set too high, they could risk doing what I am sure the noble Baroness, Lady Pinnock, does not want, which is to discourage development coming forward in the first place. For those reasons, I am afraid that I must resist the amendment and I hope that, on reflection, the noble Baroness will be persuaded not to move it when we reach it.

Before the noble Earl sits down—I thank him for the reply—can he just confirm that the Government are willing for council tax payers to subsidise planning applications, which are often very big applications? That is often where the fee discrepancy occurs, with very big housing developments or commercial developments. Is the noble Earl happy for the Government to see council tax payers subsidising those planning applications?

The noble Baroness’s question has a lot of hypotheses built into it. As she knows, local government funding is not just a matter of fees being charged and council tax being levied; there is of course support from central government as well. I suggest that it is very difficult to generalise in the way that she is asking me to. However, I say respectfully that she ought to remember too that local authorities can charge more for more complex cases, so there is flexibility in that sense.

Amendment 225 agreed.

Amendments 226 and 227

Moved by

226: Clause 120, page 152, leave out lines 31 to 39

Member’s explanatory statement

This amendment is consequential on the amendment being made to remove subsection (4) of the new section 54A of the Planning Act 2008, inserted by Clause 120, in the Minister’s name.

227: Clause 120, page 152, line 42, leave out from beginning to end of line 7 on page 153

Member’s explanatory statement

This amendment is consequential on the amendment being made to remove subsection (4) of the new section 54A of the Planning Act 2008, inserted by Clause 120, in the Minister’s name.

Amendments 226 and 227 agreed.

Amendment 227A not moved.

Amendment 228

Moved by

228: After Clause 124, insert the following new Clause—

“Infrastructure Levy and Permitted Development LegislationWithin 120 days of this Act being passed, a Minister of the Crown must publish a review of the interaction between the Infrastructure Levy and Permitted Development Legislation.”Member's explanatory statement

This means a Minister of the Crown must publish a review of the interaction between the infrastructure levy and permitted development legislation.

I beg to move the amendment in the name of my noble friend Lady Hayman. During Committee, we expressed in detail our concerns about the impact that the permitted development regime had on our town centres, on the availability of commercial property, and on the provision of often poor quality and unsustainable homes in unsuitable locations, and, most importantly for the purpose of discussion of this amendment, about the fact that permitted development does not require the usual contribution from developers to local infrastructure or provision of affordable housing. This is an excellent deal for developers but an appalling one for the community. Not only have those in such communities been unable to have their say on whether or not the development takes place, or on how the impact of the development on the area can be mitigated—and neither have their democratically elected representatives—but they have also to absorb the impact of the new development with no infrastructure to support it.

Our amendment would require a Minister to consider this urgently and to publish a review within 120 days of the Bill being passed. We hope this would ensure that Ministers keep in mind that development without any contribution to the local area or mitigation of the impact is unfair on everyone—except the developers, of course. I was very grateful to the Minister for taking time during recess to meet me to discuss the issue of permitted development, among other key planning issues. She explained to me that there is likely to be a consultation taking place on infrastructure levy on permitted development, with a view to some changes, particularly in the permitted development of office to residential accommodation, so that there would be some infrastructure levy contributions considered. I look forward to hearing her response today on how this has developed.

My Lords, I shall speak briefly to Amendment 243 in the name of my noble friend Lord Northbrook, who cannot be in his place today and has asked me to do my inadequate best to represent his views.

This amendment would remove the permitted development right to convert business premises outside a designated town centre into a café or restaurant. Surely if a developer in a quiet residential area wants to turn, for example, an estate agent’s office into a McDonald’s that will be open throughout the night, it should need planning permission to do so. Is that not a wholly reasonable proposition?

We were told in Committee that my noble friend Lady Scott said

“it remains the case that planning permission is required to change use to or from a pub. This ensures that local consideration can be given to any such proposals, in consultation with the local community”.

Surely local communities should have a say in the establishment of new cafés or restaurants in residential areas, not just pubs.

Several speakers in Committee mentioned the importance of breathing new life into our high streets. I emphasise from the start that the intention of my noble friend Lord Northbrook has always been to limit the permitted development right in residential areas, so the amendment has been recast from Committee to take account of this point, so that it applies only outside a designated town centre.

In Committee, my noble friend Lady Scott objected that the legislative approach of the amendment was flawed, so the amendment before your Lordships now has been recast to transfer responsibility for drafting the relevant wording to the Government. I hope that is a small task that my noble friend would be prepared to accept.

My Lords, I briefly support my noble friend. I signed this amendment originally and spoke to it briefly in Committee, and, as my noble friend Lord Lexden pointed out, it has been recast. I just put on record that I am a very strong supporter of regenerating high streets and trying to bring activity and wealth-creation into them. At the same time, from my constituency experience in North West Norfolk and representing the town on King’s Lynn, I am aware of examples where estate agents or shops that had the support of the community were converted into food outlets that led to a great deal of disturbance to local residents. We are not trying to hamper or hold back regeneration and the resurgence of activity in high streets, but to protect residents in a way that is doable and fit for purpose. I think this proposed new clause would do exactly that, so I very much support my noble friend.

My Lords, I support what the noble Baroness, Lady Taylor of Stevenage, said in advocating for Amendment 228. In doing so, I must join her by saying that I too must celebrate my return to the highly populated zone of LGA vice-presidents. There seems to have been a surge, and I have been carried forward in it.

The key point here is that we have to have a system where, when plans are submitted and developed, there is parallel investment in the infrastructure necessary to support the development that is proposed. The permitted development regime has provided a bypass to that process. With the arrival of the infrastructure levy, the risks of development being stranded without the supporting infrastructure have clearly risen a great deal.

I should be very interested to hear the noble Baroness, Lady Scott, telling us something about how this proposed consultation will solve the problem; I have concerns that it will not. The reality is that permitted development was a step too far in its original concept. Some brakes have been applied and some sensible amendments made, but it still provides far too many opportunities for unworthy development in local communities, not supported by and embedded in those communities but in fact a blight on the areas in which they happen. I very much look forward to what the Minister has to say in response.

I heard what the noble Lord, Lord Lexden, said in so ably introducing the amendment of the noble Lord, Lord Northbrook. It is certainly a matter of interest to many of us how town centres and peripheral areas can and should be regenerated. Again, I welcome the words of the Minister in commenting on that amendment.

My Lords, I thank the noble Baroness, Lady Taylor of Stevenage, for moving the amendment proposed by the noble Baroness, Lady Hayman of Ullock. The Government also appreciate the importance of the interaction between the infrastructure levy and development which is granted planning permission by so-called permitted development. This means, of course, development of a class for which planning permission is granted under the Town and Country Planning (General Permitted Development) (England) Order 2015—SI 2015/596.

As noble Lords are aware, most permitted development rights do not fall within the scope of the existing system of developer contributions. The infrastructure levy aims to capture more value than the existing system, and the Bill has been designed to help achieve this aim. This includes having the ability to capture land value uplift associated with permitted development, subject to provision that is made in the infrastructure levy regulations.

Our recent technical consultation sought views on how the levy could be charged on permitted development to expand the scope of developments for which levy contributions may be sought and allow local authorities to capture more value for infrastructure and affordable housing where currently little or no contributions are collected. It will take time to analyse the technical consultation responses, to undertake further review and consultation, and to develop policy as a result of that, before drafting regulations. However, I accept that this is a matter of considerable importance to the House.

We do not propose to accept the amendment of the noble Baroness, Lady Hayman, which would require a review to be published within 120 days of the Bill being passed. We can instead commit that the Government will publish a report on how the levy will work in relation to permitted development at an appropriate point when the policy is developed. This will set out the interrelationship between the levy and permitted development. The Government will commit to doing this on or prior to the day that the infrastructure levy regulations are laid, so that the interaction between the levy and permitted development can be clearly understood. I hope that, with these clear reassurances, the noble Baroness, Lady Hayman, will be content to withdraw her amendment.

Before I move on, the noble Lord, Lord Stunell, seemed pretty concerned about permitted development rights. He ought to be aware that nationally permitted development rights make an important contribution to national housing delivery. In the seven years to March 2022, they delivered more than 94,000 houses, which represents 6% of the overall housing supply in that delivery period.

We want to make sure that the existing conditions and limitations that apply to permitted development rights and allow for the change of use to residential property are fit for purpose. So far, we have done this and we continue to. As I said, there is an ongoing consultation, which closes on 25 September. Any changes subject to its outcome will be brought forward via secondary legislation.

I move on to Amendment 243. I thank my noble friend Lord Lexden for putting this forward on behalf of my noble friend Lord Northbrook. The amendment seeks to restrict the flexibility of premises within Class E—the commercial, business and service use class—to be used as cafés or restaurants. As a Government, we believe that restaurants and cafés are important parts of our high streets, town centres and other parts of our country, such as towns and villages, and we do not want them to be limited. In addition, the general permitted development order cannot be used to place limits on the operation of a use class. Therefore, once again, we cannot support this amendment.

Amendment 228 withdrawn.

Clause 128: Power of certain bodies to charge fees for advice in relation to applications under the Planning Acts

Amendments 229 and 230

Moved by

229: Clause 128, page 158, leave out lines 19 to 22

Member's explanatory statement

This amendment removes subsection (3)(b) of the new section 303ZB of the Town and Country Planning Act 1990, being inserted by Clause 128, which contains a restriction on prescribed bodies from charging fees where the advice, information or assistance is provided to certain excluded persons.

230: Clause 128, page 158, leave out lines 32 to 38

Member's explanatory statement

This amendment is consequential on the amendment being made to remove subsection (3)(b) of the new section 303ZB of the Town and Country Planning Act 1990, inserted by Clause 128, in the Minister’s name.

Amendments 229 and 230 agreed.

Amendment 230A

Moved by

230A: After Clause 128, insert the following new Clause—

“Biodiversity net gain: pre-development biodiversity value and habitat enhancementIn Schedule 7A to the TCPA 1990 (biodiversity gain in England)—(a) in paragraph 5(4), after “6” insert “, 6A, 6B”;(b) after paragraph 6 insert—“6A If—(a) a person carries on activities on land on or after 25 August 2023 in accordance with a planning permission (other than the planning permission referred to in paragraph 5(1)),(b) on the relevant date, development for which that other planning permission was granted—(i) has not been begun, or(ii) has been begun but has not been completed, and(c) as a result of the activities the biodiversity value of the onsite habitat referred to in paragraph 5(1) is lower on the relevant date than it would otherwise have been,the pre-development biodiversity value of the onsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.6B (1) This paragraph applies where there is insufficient evidence of the biodiversity value of an onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A. (2) The biodiversity value of the onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A is to be taken to be the highest biodiversity value of the onsite habitat which is reasonably supported by any available evidence relating to the onsite habitat.”;(c) in paragraph 10—(i) in sub-paragraph (1), after “habitat enhancement” insert “of an offsite habitat”;(ii) after sub-paragraph (1) insert—“(1A) For the purposes of sub-paragraph (1) (and without prejudice to paragraphs 3 and 4(1)), a habitat enhancement is calculated as the amount by which the projected value of the offsite habitat as at the end of the maintenance period referred to in section 100(2)(b) of the Environment Act 2021 exceeds its pre-enhancement biodiversity value.(1B) The pre-enhancement biodiversity value of an offsite habitat is the biodiversity value of the offsite habitat on the relevant date.(1C) The relevant date is—(a) the date on which the application is made to register the land subject to the habitat enhancement in the biodiversity gain site register, or(b) such other date as may be specified in the conservation covenant or planning obligation.(1D) But if—(a) a person carries on activities on an offsite habitat on or after 25 August 2023 otherwise than in accordance with—(i) planning permission, or(ii) any other permission of a kind specified by the Secretary of State by regulations, and(b) as a result of the activities the biodiversity value of the offsite habitat is lower on the relevant date than it would otherwise have been,the pre-enhancement biodiversity value of the offsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.”;(d) in paragraph 12(1), after the definition of “onsite habitat” insert—““offsite habitat” means habitat which is not onsite habitat;””Member’s explanatory statement

This amendment inserts a new Clause in the Minister’s name which makes provision about the valuation of the pre-development biodiversity value of an onsite habitat and of the enhancement of the biodiversity of a habitat for the purposes of Schedule 7A to the Town and Country Planning Act 1990.

My Lords, I beg to move Amendment 230A, and I will speak to Amendment 309B. These make clear the Government’s commitment to ensuring that biodiversity net gain achieves its intended positive outcomes for nature. They seek to reduce incentives for site clearance on development sites and on sites generating off-site units.

Biodiversity net gain is a flagship government policy. Officials are working closely with stakeholders to prepare for its implementation. It will mean that new developments improve nature and, as its name suggests, will be a net gain for nature. We have heard concerns raised that developers would be incentivised to clear habitats prior to the submission of a planning application or site survey. We have brought forward government Amendments 230A and 309B to address this concern.

The Environment Act already requires the use of a historic baseline of on-site habitat for sites where habitats have been degraded. These amendments go further and ensure that a precautionary approach to the baseline habitat for these sites must be undertaken when sufficient evidence is not available.

These amendments also seek to close a potential loophole in legislation. Currently, a site could be cleared under an existing planning permission, even if the development and biodiversity gains of this permission were not completed. Then, a new permission could be applied for, using the cleared site as the baseline for BNG purposes. These amendments will prevent this.

The amendments also ensure that habitats will not be cleared in advance of delivering habitat creation off-site in order to sell biodiversity units. Without these amendments, an area of off-site habitat could be cleared and then recreated and sold as habitat enhancement. These amendments will prevent this by requiring that pre-enhancement measurements of biodiversity are registered before any activity that lowers the biodiversity value.

Noble Lords will note that these amendments will apply retrospectively, back to the date of tabling. We have secured law officer agreement to this approach, which is important to make sure that people do not use the period between now and the commencement of these provisions to reduce their habitats’ baselines. I hope noble Lords will see how important these amendments are in addressing these concerns within the existing BNG framework.

I go on to thank my noble friend Lord Randall of Uxbridge for tabling Amendment 282M and the supplementary Amendment 288C. I am pleased to continue the conversation about the importance of these treasured landscapes. Having thoroughly considered Amendment 282M, we are content to accept it in principle. Protected landscapes are crucial delivery partners for so many of our goals for nature, climate and rural communities. We agree that their management plans should be enhanced and that the contribution of partners should be bolstered. This amendment takes a balanced, proportionate approach to achieving these aims. We have a wish to consider any technical drafting amendments that may be required to ensure that the amendment operates correctly in practice. The Government are therefore undertaking to bring forward a similar amendment at Third Reading. This will ensure that protected landscapes organisations continue to be at the heart of our work to unleash rural prosperity and create a network of beautiful, nature-rich spaces that can be enjoyed by all parts of society. This will be supplemented by our upcoming protected landscape outcomes framework and updated guidance, further delivering the Government’s response to the landscapes review.

I take this opportunity to extend my and the Government’s continued thanks to Julian Glover and his panel for this superb piece of work. I also thank my noble friend Lord Randall for his tireless work on this matter, which I know is dear to his heart. With that commitment, I hope my noble friend will not move his amendment and will agree to work with us as we take this forward to, in principle, the same amendment at the next stage.

My Lords, I should first declare some interests. When I spoke on the swift bricks amendment in the name of my noble friend Lord Goldsmith the other night, I was so excited that I forgot to declare them. I hope I can make an apology. I have many conservation interests, including as a councilman with the RSPB—particularly relevant to the swift bricks—and, for consideration later today, as a member of the advisory board of River Action, which might give noble Lords an indication of where my interests will lie this afternoon.

I also have some good news. My noble friend the Minister has given me some, which I will come back to, but mine is this: I am losing my voice. I think that will be generally approved of on all sides of the House.

I know my noble friend has been working tirelessly and I thank all those members of the Government in the two departments—the Secretaries of State and the Ministers, as well as many others—who have got us to where we are today. In particular, apart from thanking Julian Glover, who, as my noble friend said, did this excellent review, I thank two strong allies on this from across the Chamber: the noble Baroness, Lady Jones of Whitchurch, who tabled the original amendment in Committee when I was elsewhere, occupied in hospital, and the noble Baroness, Lady Willis of Summertown. Their support has kept me going.

I know that I have begun to sound like a record with a needle stuck in it, but I think it has paid off. I thank everybody concerned with this. National parks and areas of outstanding natural beauty are what we are about, and biodiversity in those areas is depleted. I am pleased that the Government have recognised this and the need for legislation.

My Lords, I will speak very briefly. I declare an interest as a member of the South Downs National Park Authority. I thank the Minister and the noble Lord, Lord Randall. It has taken a long time coming, but I will not be churlish at this point; I am glad that, eventually, the very sensible, common-sense arguments that the national parks have put forward on this issue have been listened to. I have read the Written Ministerial Statement on this. The Minister has echoed that, more or less, in technical terms, our amendment has been accepted and they will just tweak it somewhat. Obviously, we would like to see the final version of it, but I am sure it will appear in good faith. I thank him for that.

My Lords, I will speak very briefly, just to say a huge thanks to the noble Lord, Lord Randall, and the noble Baroness, Lady Whitchurch, for the three of us working together, and most of all to the noble Lord, Lord Benyon, for taking note and working this through. We have come to the point where we will have a good outcome for nature, but also a good outcome for the local economies and the people who work in these areas. I believe it is a win-win for national parks and areas of outstanding natural beauty in the UK.

My Lords, I hate to dampen the overall enthusiasm, but I would just like to put in a word for the countryside and those who live and work in national parks and areas of outstanding natural beauty. They sometimes feel that their interests are overlooked. I am grateful to my noble friend the Minister in being mindful of their interests when he comes to draft his amendment, if he would do so.

My Lords, this is a good day. I thank all noble Lords who have worked hard with the Government to get to a place where there is landscape protection for those areas of outstanding natural beauty and national parks. I am fortunate to live in a place where I can easily get to three great national parks—the Yorkshire Dales, the North York Moors and the Peak District—so I particularly welcome, from a selfish point of view, what has been achieved here.

Turning to government Amendment 230A, I am pleased that the Government have closed a loophole here in the way that biodiversity net gain is measured. That is very positive. I applaud the whole biodiversity net gain approach.

I will make one comment about an issue which constantly concerns me when dealing with local planning applications: applicants trying to wriggle out of their responsibilities in biodiversity net gain. As the Minister will know, there is a hierarchy of how applicants can achieve biodiversity net gain—on site, close to, by, or as near as possible. If you live in a built-up area like me, “as near as possible” can be a big distance away. The town where I live—I guess this happens to small towns all across the place—will often see its biodiversity further depleted because the hierarchy allows applicants to put their biodiversity net gain at some distance away. I wonder whether the Minister could perhaps address that and enhance what I believe is a very positive approach adopted by the Government.

My Lords, I welcome the Government’s amendments that have been tabled in recognition of previous concerns expressed by your Lordships. As a member of Friends of the Lake District, I am pleased to see that the Government have pretty much accepted the amendment of the noble Lord, Lord Randall. It is important. I thank the noble Lord, Lord Randall, my noble friend Lady Jones and the noble Baroness, Lady Willis, for their comments and support for that.

Those of us who live in areas of outstanding natural beauty and national parks know that there is so much that we can do to enhance nature, increase natural beauty, support our cultural heritage, and work to support climate change and the local people who live there. The amendment of the noble Lord, Lord Randall, brings this about by implementing much of what was in the Glover review. Again, I thank the Minister and the noble Lord, Lord Randall, for all their work on this. These are important amendments, and they will improve our countryside.

My Lords, I will respond to a couple of the points made. First, my noble friend Lord Randall probably took my place on the advisory board of River Action UK, from which I had to resign to take this job. I wish him well in that organisation.

My noble friend Lady McIntosh raises a point she has raised with me before. There are duties on national parks and AOBs to support the local rural economy, and this is very much in line with that. The Glover review was very clear on that, but I will continue to give her the reassurances I can.

To the noble Baroness I say that we have a whole range of different planning requirements and strategies that seek to hardwire green infrastructure into new developments. Biodiversity net gain incentivises developers to find as many sites within those schemes and to green them as much as they can, and, where they cannot, to find other locations to do that nearby. Some will have to be traded on biodiversity credit schemes to be further away, but the key point is that this is a net gain for nature. This is making sure that, from now on, we will see a different approach, which will recognise how nature has been depleted in the past and seek to work to the Government’s very demanding ambitions to reverse the declines in nature by 2030, and to see the continued meaningful protection of land.

I live in an AOB and entirely accept the points that the noble Baroness, Lady Willis, has made, on frequent occasions, that if these areas are to contribute to our 30 by 30 target, they have got to be nature-rich—we have to reverse those declines—and lead the way. We hope that these policies will do that.

Amendment 230A agreed.

Amendment 231

Moved by

231: After Clause 128, insert the following new Clause—

“Sustainable drainageThe Secretary of State must make provision under section 49 of the Flood and Water Management Act 2010 so as to bring Schedule 3 to that Act (sustainable drainage) into force in relation to England before the end of 31 December 2023, insofar as it is not already in force.”

My Lords, in moving this amendment I will speak to it and to other amendments in this group. At the outset, I would like to declare my interests on the register, and also that I am co-chair of the All-Party Parliamentary Group on Water, and that I chaired a study into bioresources and was co-author, with Westminster Sustainable Business Forum, of Bricks and Water: Managing Flood Risk and Accelerating Adaptation in a Climate Emergency. Many of its recommendations lie behind these amendments.

I would like to speak to each of the amendments in turn. I thank my noble friend Lord Wigley for co-signing and supporting Amendment 231. This amendment, together with Amendments 232 and 245, are probably the key amendments in the group. I find it staggering that, whereas Wales implemented Schedule 3 to the Flood and Water Management Act 2010 as far back as January 2019, and in July published the first post-implementation review into Schedule 3, on SUDS, and how it had been implemented in Wales, we have still not implemented Schedule 3 in England. The reason why this amendment is required is that, since 2013, more than 10% of all new homes in England have consistently been built on land at risk of flooding, in particular flood zones 2 and 3.

I will quote briefly from page 47 of the revised National Planning Policy Framework, which was published this month. Paragraph 159 says:

“Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere”.

That simply does not go far enough. In essence, we have encapsulated in Amendment 232 a prohibition on building on residential flood plains. It is just not appropriate to continue to build on areas prone to flooding, displacing the water retained there into existing developments.

The reason why Amendment 231 is important is encapsulated by the work of CIWEM, the Chartered Institution of Water and Environmental Management, which came out with a report earlier this year, the findings of which are that

“Surface water flood risk is commonly managed by small teams frustrated by unclear duties and remit, complicated funding processes, fragmented data and a lack of capacity and skills”.

CIWEM has asked that the Government

“show greater leadership on surface water management … ensure that sufficient funding is provided to surface water management schemes … clarify and consolidate surface water management regulations, standards and plans”


“improve approaches to the collection and sharing of data and development of asset registers”.

Those conclusions chime with many of the amendments and recommendations set out therein.

As far back as 2007, Sir Michael Pitt said that there should be an end to the automatic right to connect: that you cannot have developments which are in inappropriate places but also try to connect to inappropriate piping. That is why Amendment 245 is crucial. It calls on water undertakers—in effect, water companies—to become statutory consultees. I am mindful of what my noble friend Lord Howe said in summing up a previous debate about the number of statutory consultees to date, but I believe it is appropriate for water companies to become statutory consultees so that they will have the power in the same way as the Environment Agency, which can recommend against a particular development being built in an appropriate place to make sure that it connects only where the infrastructure is appropriate. It is not appropriate to connect new developments to antiquated pipes that simply cannot take them.

In fact, Amendment 245 would help the Government, who were criticised as recently as yesterday by the Office for Environmental Protection for falling short in their understanding of its review of sewage spills over recent years. As well as Defra, the OEP has criticised Ofwat and the Environment Agency. Amendment 245 would assist the Government by ensuring an end to an automatic right to connect, which was called for as far back as 2007, following the floods, by Sir Michael Pitt.

Sustainable drains are part of this. Any new development should be built only if there are sustainable drains. They could be natural or physical, but they should ensure that the water is kept out of the combined sewers at all costs. This has to be front ended. We have to stop building three, four or five-bedroom houses, which multiply by three, four or five the amount of wastewater—let us call it what it is: sewage—which so often spills into the combined sewers, causing a health hazard, or on to public highways. Let us note that no highway authority is contributing in any shape or form financially to keeping the water out of those combined sewers. That is why Amendment 231 is required.

Amendment 232 would ban residential building on flood plains for the reasons I rehearsed a moment ago. That is a key amendment, along with Amendments 231 and 235.

Amendment 236 contains a duty to make flooding data available. This was one of the conclusions reached by CIWEM, but it was also one of our conclusions in the Bricks & Water reports: that we need to ensure that flooding data is available and publicised to those who need it. That was the genesis of the amendment: in effect, that the Environment Agency should ensure that the flood map for planning should be expanded to include all current and future sources of flood risk, and assist with the application of the sequential test and site-specific risk assessment, which are referred to in the National Planning Policy Framework.

Again, Amendment 240 was a recommendation of the Bricks & Water reports looking at flood risks: that Part C of the building regulations should be strengthened to require all properties at high risk of flooding to include property flood resilience measures. These measures should be specified and installed in accordance with the CIRIA code of practice for property flood risk. Is it not just common sense to encourage individual home resilience to help individual home owners, but also for the greater good?

Amendment 237 again is a Bricks & Water recommendation:

“Given the limited uptake of property flood resilience measures and continued development within the floodplain, Government should either extend the Flood Re scheme to cover residential buildings constructed after 1st January 2009, or put in place an alternative scheme. This should be evaluated as part of the ongoing Blanc review into flood insurance”.

I think the noble Baroness, Lady Hayman, has lent her support to that amendment and I am grateful to her for that. It is important to remember that when Flood Re was created it was assumed that no new houses would be built on flood plains. As we know, since 2013, 10% of new homes continue to be built on flood plains.

Amendment 238 is a recommendation that it should be mandatory for all insurers to offer Build Back Better funding reinvestment costs of up to £100,000 over and above the work to repair damage caused by a flood.

I am delighted to support Amendment 240, which I think the noble Baroness, Lady Hayman, will speak to. It is important that we have those flood risk recommendations.

Amendment 241 states that all insurers should offer discounted premiums to customers who install property flood resilience measures in accordance with the CIRIA code of practice.

With those brief remarks, I believe that each and every one of the amendments in this group is extremely important. There is an urgency to SUDS being implemented by Schedule 3 to the Flood and Water Management Act 2010. It should be implemented this year rather than delayed to next year. There is an urgency to completely preventing future housebuilding on flood plains. It is vital that, as Amendment 245 sets out, water companies become statutory consultees so that, where there is no way of connecting a major housing development to existing infrastructure, the water companies should be allowed in the terms of the price review, which is every five years, to make the relevant investment they are required to make. I beg to move.

My Lords, I rise to speak very briefly on this matter. I welcome the amendment being proposed by the noble Baroness, and the comments that she has made. I have not been intervening very much on most of this Bill, particularly those parts, like most of these, that apply to England only. But of course, with regard to drainage, water flow and rivers, there are cross-border issues.

The noble Baroness kindly referred to some of the progress that we have made in Wales on some of this, which of course we welcome, but goodness knows there is much more that needs to be done in Wales as well as in England. In any work that is undertaken in England this way, the co-ordination between what happens in England and in Wales on these matters is of vital importance. Therefore, I believe that the noble Baroness has, in a number of these amendments, put her finger on matters that are important in Wales as well. We have to deal with certain aspects of those ourselves, but we also have to co-ordinate where that is appropriate.

My Lords, I stand to introduce my Amendment 240, and also to speak briefly in support of the amendments tabled by the noble Baroness, Lady McIntosh of Pickering.

My Amendment 240 is on flood prevention, mitigation certification and accreditation schemes. The reason I have tabled this amendment is that it does concern me that, when we have areas that have suffered major flooding, with both residential and business properties damaged, often the incentives to “build back better”—to put in flood mitigation and systems such as, in a residential building, a different sort of kitchen, different flooring, flood doors and so on—have not always been the eventual outcome when repairs have been done. It is also about the actual standard when they are put in: what kind of standard are the building repairs, which are being paid for by insurance companies? Whenever there is a major flooding event, insurance companies have an enormous amount of work to do, and we should thank them for that. Most insurance companies work very hard to provide a good service. But we have to be careful to make sure that all the equipment and facilities that are available are of the right standard and that appropriate mitigation is being put in place, which is why I have brought my amendment forward.

On the amendments of the noble Baroness, Lady McIntosh of Pickering, I just wanted to make a few comments. Her Amendment 231 is about sustainable water management and sustainable drainage; I know this is a topic that is very close to the noble Baroness’s heart, and I completely support her on what she is trying to achieve through this. We know that sustainable drainage systems—SUDS—can play a pivotal role in ensuring that new properties are built in a way that manages surface water flood risk at a local level. We also know that the Government have a really good policy on SUDS under the Flood and Water Management Act, which the noble Baroness referred to. I think the frustration is that we now need the Government urgently to implement this, so that we can benefit from the announcements. The Government announced in January that it was going to be mandatory in all new developments, so we need to crack on with the implementation of this. We would very much support the noble Baroness’s amendment on that.

On the noble Baroness’s Amendment 232, on basically not building any more on flood plains, we again strongly support the noble Baroness in her efforts to achieve this. We know that the insurance industry, through the ABI, has been calling for the Government to ensure that there is no inappropriate development on flood plains and flood risk areas, and also that we need a more transparent planning application system in regard to this. One of their asks is that the Government link future residential and commercial developments to the building regulations approved documents. Again, it will be interesting to hear the Minister’s thoughts on that.

This Bill is also reviewing the National Planning Policy Framework, so we think that brings forward an opportunity to really set how this should happen, to ensure that we do not get inappropriate building. I remember there was one case when there was a large flood—I live in an area that floods—and there was a new development called “Water Meadows”. After the flooding had gone away, it was called the “Meadows”. That was very disingenuous of developers, and I think we need to get to grips with this. If the noble Baroness wishes to put her Amendment 232 to a vote, we would be very happy to support it.

My Lords, the important amendments that the noble Baroness, Lady McIntosh of Pickering, has tabled to the Bill demonstrate how wide-ranging the Bill is. These amendments themselves could benefit from an individual Bill, because they are so critical to the future both of development and of environment preservation in our country. To be able to spend only 30 to 40 minutes debating them is a great shame, because the noble Baroness raises very significant issues.

The reason that these issues are so important was not stated, but I will state it because it is fundamental. We know that climate change will inevitably lead to higher rainfall and, therefore, to higher potential flood risks. All water companies, I know, have to take that into account in their 25-year plans when developing their own infrastructure, to make sure that it is flood resilient. If they are doing that, then surely the Government and Parliament itself have a responsibility to help developers build in such a way that housing, in particular, is either not built on flood plains or is built to be totally resilient to increasing water levels and flood risk as a result of climate change.

The Environment Agency has a hierarchy of flood zones: 1, 2 and 3. Flood zone 3, the high-risk one, is separated into two parts: 3a and 3b. Flood zone 3b is what we would describe as a functional flood plain: where water goes when there is heavy rainfall. There should not be any development on flood zone 3b, and on 3a only after very clear advice that it should not be there during a planning application or consultation. That is the essence of Amendment 232, of the noble Baroness, Lady McIntosh.

Too many homes are currently being built on areas at risk of flooding. The consequence is that in a few years’ time, as rainfall increases as a result of climate change, those same houses will be at greater risk of being flooded. That cannot be right; we ought to be dealing with that at the planning and construction stages.

Finally, the Government need to try to develop some joined-up thinking on development and flooding. The Environment Agency is clear on its zoning; local flood management groups are statutory consultees on planning applications and have to give clear advice. Yet, in the new version of the NPPF, as the noble Baroness has pointed out, that clarity and that robust advice are not there. In order to be transparent to developers and local people—or those who may buy houses built in flood risk areas—we ought to strengthen the government advice in the new NPPF document.

I obviously completely support Amendment 240 in the name of the noble Baroness, Lady Hayman of Ullock. However, of all the amendments we have debated, it is Amendment 232 in the name of the noble Baroness, Lady McIntosh—which would safeguard high-risk flood zones from development and people who may inadvertently purchase a house built in a high-risk flood zone—that would provide clarity. Let us get that clarity because although the Environment Agency and local flood management groups will be clear, the Government are not as clear. This amendment would give that clarity of purpose: do not build in flood zones 3a and 3b for domestic purposes. If the noble Baroness, Lady McIntosh, wishes to test the opinion of the House on this critical issue, we on these Benches will support her.

My Lords, I had not expected to speak but this interesting debate has raised a couple of questions which maybe the Minister or the noble Baroness, Lady McIntosh, may address, particularly concerning Amendment 232.

I note that I am a member of the Wetlands APPG, so wetlands and flood plains are very close to my heart. I am also a member of the Devon Housing Commission so the cost and availability of housing in rural areas is very close to my heart too. There is a conflict here and I wonder whether Amendment 232 would have too big an impact on the availability and affordability of housing in areas near these floodplains.

I wonder whether the Minister or the noble Baroness, Lady McIntosh, if she sums up, can assist me on that point. I also wonder, given that we have just discussed the biodiversity net gain principle, whether we can apply that principle to building housing on these sensitive areas, such that if flood plains are being used up to create residential housing in essential areas, we look to invest in creating further areas for flood relief and landscaping to offset and ameliorate the problems created by building in these important areas where housing is required because it tends to be accessible and somewhat more affordable.

My Lords, as we have heard, this group of amendments addresses a range of issues relating to water management and flood risk and I think it appropriate for me to begin by responding to Amendment 231, the first amendment in this group. I am grateful to my noble friend Lady McIntosh of Pickering for this amendment because it gives me the opportunity to tell the House that following publication of the review for implementation of Schedule 3 to the Flood and Water Management Act 2010 earlier this year, the Government are actively working on how best to implement Schedule 3.

An ambitious timeline has been set to deliver this quickly and that is why we have already committed to implementation in 2024 following statutory consultation later this year. I am sure my noble friend will understand how essential it is that we allow sufficient time to engage with stakeholders to help shape the details of implementation. Schedule 3 provides for a public consultation which must take place on the national standards. We have also committed to consult on the impact assessment and will need stakeholder views to inform decisions on scope, threshold and process in order to draft the secondary legislation required to implement Schedule 3. I hope that reassures my noble friend regarding her Amendment 231 and that, on that basis, she will not feel the need to press it.

Amendments 232 and 237 in my noble friend’s name would prevent planning permission for residential development in functional flood plains and high-risk flood areas and create a new duty for the Secretary of State to make building regulations within six months for property flood resilience, mitigation and waste management in connection with flooding. I listened carefully to what my noble friend and the noble Baronesses, Lady Pinnock and Lady Hayman, had to say. Let me explain where the Government are on this. Planning policy directs development away from areas at the highest risk of flooding. Building regulations set drainage system requirements for individual buildings and the main sewerage system is governed by the sewerage undertaker for the area.

As I said, I listened carefully to the arguments put forward but contend that the Government have well-established means of making sure that new developments are not approved where there is an unacceptable flood risk. I would argue that the Environment Agency and local authorities are the right bodies to oversee the maintenance of existing flood mitigation measures and, for these reasons, in our view introducing new requirements into the building regulations is not necessary.

New housebuilding—I hope I can reassure the noble Earl, Lord Devon, on this—and most other forms of development should not be permitted in the functional flood plain where flood-water has to flow or be stored. But it is important that local councils follow the sequential risk-based policy in the framework, steering new development away from areas known to be at risk of flooding—now or in the future—wherever possible. However, sometimes it is necessary to consider development in such areas. Banning development entirely in flood risk areas would mean that land that could safely be built on could no longer provide the economic opportunities our coastal and riverside settlements depend on. That is why I say to the House that we should trust our local authorities to make sensible decisions about what development is appropriate in their area. Having said that, we will of course keep national planning policy on flood risk and coastal change under review, as noble Lords would expect.

Amendment 236 would place a duty on the Government and local authorities to make data about flood prevention and risk available for the purpose of assisting insurers and property owners. Data about flood prevention and risk, including for planning purposes, is already publicly available, provided primarily by local authorities and the Environment Agency. Creating new duties on government and local authorities to publish this data is therefore unnecessary. Insurers can already access information, and to require government or local authorities to facilitate their use of the information would create unnecessary burdens on our public services. Within both the Environment Agency and the insurance industry, the modelling of UK flood risk continues to improve, resulting in models and maps than can assess flood risk at more detailed geographical levels, taking into account all the drivers of risk.

Amendment 238 would require the Financial Conduct Authority to make rules requiring insurance companies to participate in the currently voluntary build back better scheme, which was launched by Flood Re in April 2022. Amendment 239 extends the flood reinsurance scheme to premises built since 2009 that have property flood resilience measures that meet minimum standards and buildings insurance for small and medium-sized enterprise premises.

The build back better scheme is still in its early days and has not yet been fully embedded or tested. This is therefore not the right time to consider making changes. Properties built since 2009 should be insurable at affordable prices because of the changes to planning policy in 2006. If Flood Re were applied to homes built after 2009, that would be inconsistent with current planning policy.

I am slightly concerned because the legal position is very clear: any new development built after 2009 on a flood plain, whether functional or not, simply does not qualify for insurance. That is the purpose of the amendment. Unfortunately, if a house purchaser does not require a mortgage, they will not realise that they are not covered by insurance until such time as they are flooded, hence the need for the amendment.

I am in some difficulty because the advice that I have received is different. I shall need to take advice and write to my noble friend on that point. I come back to what I said earlier: properties built since 2009 should be insurable at affordable prices because of the changes made to planning policy back in 2006. That is the position as we understand it.

With regard to small and medium-sized enterprise premises, Flood Re was designed to provide available and affordable insurance for households, but that does not include businesses. There is no evidence of a systematic problem for businesses at high flood risk accessing insurance.

Amendments 240 and 241 would require, first, the Government to establish a certification scheme for improvements to domestic and commercial properties in England made for flood prevention or flood mitigation purposes and, secondly, the Financial Conduct Authority to make rules requiring insurance companies to consider flood prevention or mitigation improvements that are either certified or planning permission requirements in setting insurance premiums.

We are committed to promoting the uptake of property flood resilience and are working closely with Flood Re, the property flood resilience round table and the insurance industry to determine how best to develop the mechanisms needed for insurers to take account of property flood resilience when setting premiums. Additionally, the industry is exploring how to improve standards and skills. For example, as part of the joint Defra and industry round table, the Chartered Institution of Water and Environmental Management is developing a certified competent PFR practitioner scheme to help grow the pool of trained professionals and improve the standards for the design, installation and maintenance of PFR projects.

Amendment 245 in the name of my noble friend Lady McIntosh seeks to make water undertakers—that is, water and sewage companies—statutory consultees on planning applications for major development that is likely to affect water supply. I am grateful to my noble friend for this amendment. Like her, I appreciate the important role of water undertakers in maintaining public health and ensuring access to clean water for communities. This is why in the other place the Government committed to consult after Royal Assent on whether we should make water companies statutory consultees, how that would work in practice and any implications flowing from that. As the DLUHC Secretary of State can make changes to the list of statutory consultees through secondary legislation, we do not need to use the Bill to do that. With that in mind, I hope my noble friend will not feel the need to move her amendment when we reach it.

My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Wigley, for supporting Amendment 231 and the noble Baronesses, Lady Pinnock and Lady Hayman of Ullock, for their support. I will not go through each and every amendment.

Amendment 245 is a direct consequence of the Pitt recommendation to end the automatic right to connect. We are placing the Government, the department, Ofwat and the Environment Agency, but in particular the water companies, in a difficult position by forcing them to connect when the pipes simply cannot take the sewage. It goes into the watercourses right at the beginning of the process, then into the rivers and to the coast, and we know that everyone gets upset about that.

To correct my noble friend, the ABI briefing for today’s debate says: “It is important to note that Flood Re does not provide cover for properties built after 1 January 2009. The 2009 exemption is an extension from previous amendments between the insurance industry and the UK Government, which jointly agreed to purposely exclude these properties from the scheme to ensure that inappropriate building in high flood risk areas was not incentivised”. That is why I shall be pressing Amendment 232 to a vote.

If my noble friend would be kind enough to give way, I will repeat that my advice is that properties built since 2009, as she said, are not eligible for Flood Re. However, they should be insurable via the commercial market.

Hand on heart, I do not know of any commercial insurance company—I know others are better versed on that, including the noble Lord, Lord Hunt—that would offer that.

I will respond briefly to the comments of the noble Earl, Lord Devon, which raise wider issues. I believe we are fixated on new build, which is forcing people to build on flood plains. One measure would be to remove VAT on the renovation of houses and put VAT on new build. But I believe it is the responsibility of local authorities to rule out building on flood plains where the direct consequence of that will force floodwater and displaced water into existing developments. I do not think the National Planning Policy Framework adequately addresses that. I will not go on any further, except to beg leave to withdraw Amendment 231.

Amendment 231 withdrawn.

Amendment 232

Moved by

232: After Clause 128, insert the following new Clause—

“Residential buildings on floodplains(1) Local planning authorities must not grant permission for residential properties to be built on functional floodplains or areas at high risk of flooding.(2) An area is a functional floodplain or at high risk of flooding for the purposes of subsection (1) if the Environment Agency assesses it as a Zone 3a or 3b flood zone.”

Amendment 233

Moved by

233: After Clause 128, insert the following new Clause—

“Developments affecting ancient woodlandWithin three months of this Act being passed, the Secretary of State must vary The Town and Country Planning (Consultation) (England) Direction 2021 so that it applies in relation to applications for planning permission for development affecting ancient woodland.”Member’s explanatory statement

This amendment requires the introduction of a consultation direction for developments affecting ancient woodlands.

My Lords, Amendment 233 is in my name and those of the noble Baroness, Lady Willis, and the noble Lord, Lord Randall. I thank them for their support. I declare my interest as chair of the Woodland Trust.

Noble Lords have heard me bang on interminably about this subject before but I shall briefly bang on about it again. It would require the Government to fulfil a promise they made nearly two years ago, during the passage of the Environment Act, to amend the consultation direction in planning law to require local planning authorities to notify the Secretary of State if a planning application would damage or destroy an ancient woodland.

Ancient woodlands are an important and irreplaceable gem. They are highly efficient in sequestering carbon and one of the richest habitats for biodiversity. Currently, there are more than 800 cases of ancient woodlands on the Woodland Trust’s register of woods under threat. It is noticeable that around 160 additional cases have come in during the last two years since the Environment Act promise was made. There has been no progress in implementing it. Those 160 or so cases need not have happened.

Ancient woodlands are irreplaceable because they have been formed over centuries into complex assemblages of species both above and below ground. They cannot be moved or recreated. If they are damaged, they are gone. We are down now to the last fragments of ancient woodland but they have no real protection in law. They are the cathedrals of biodiversity, with huge cultural and historical significance but none of the protections afforded to cathedrals or to any listed building.

This amendment would require the Secretary of State to consider and take a view on any development that was going to damage or destroy ancient woodland. In my experience, the consultation direction also acts as a reminder to planning authorities and developers of the need at all costs to avoid developments that threaten ancient woodland.

It is very distressing to see cases where, on many occasions, good prior discussion on the location and design of developments would have avoided the need to damage ancient woodland at all. It is notable that even HS2, which holds the prize for the all-time number of ancient woodlands damaged, has managed, during the implementation phase, to reduce the level of damage and the number of sites impacted as a result of negotiations and discussions with the Government and the Woodland Trust. Regrettably, many are still being damaged, but it shows what is possible.

I know that the Government are keen to honour the commitment made during the passage of the Environment Act and to change the consultation direction absolutely along the lines of my amendment. The Minister and the noble Earl, Lord Howe, have given me a lot of time and some tremendous assurances about processes and timescales, but we have had assurances and flurries of activity during the past two years without progress being made. They fall back and get forgotten again. The process laid out by the Minister needs agreement between her department, Defra and a number of other agencies. I know it is an ignoble thought but this does rather leave quite a lot of room for delay and complication.

We now need a bit of legislative welly to guarantee progress. This amendment sets a deadline of three months after Royal Assent, which accords well with the indicative timescale offered by the Minister. I shall want to test the opinion of the House. I beg to move.

My Lords, I rise briefly to give my full support to the amendment in the name of the noble Baroness, Lady Young.

I want to add one piece of information to the points made by the noble Baroness. This is now urgent. We need much better and tighter legislation in place to protect our ancient woodlands. Since the Environment Act 2021 was passed, 200 local planning use decisions have given the green light to damaging ancient woodlands. This represents about 0.2% of the remaining ancient woodland. If we carry on at this rate, it does not take much to work out how quickly we will lose the rest of this incredibly important ecosystem. We must give this important, urgent issue our full attention.

My Lords, I will be even briefer in full support of the amendment in the name of the noble Baroness, Lady Young. I agree with everything that has been said. I will not rise to the bait at the mention of HS2; that is not going to happen. But we need legislation—we cannot afford to lose this incredible habitat.

My Lords, I very much hope that the Government will take this amendment seriously. I would like to see them accept it. I do not agree with the noble Baroness, Lady Young, that ancient woodland is irreplaceable. It just takes a very long time—a matter of centuries—to replace it. As part of our planning, when it comes to 30 by 30, where to put woodlands and the extremely important issue of connection, we ought to be saying that losing 0.2% of our ancient woodland every year is not good. We want to plan to add 0.5% a year to where we plant and how we connect. We should have a long-term strategy to make sure that, in 100 years, we have twice as much woodland as now; otherwise, we will continue to bite into it.

A planning permission is currently being sought in Kent. I can see the argument for it. We want a supply of ragstone. A lot of important buildings are built of ragstone. This may be entirely the right place from which to get it. An additional Thames crossing is in prospect. We may well need it. We know that there will be circumstances in which we want to tear down ancient woodland. You cannot just take the soil and stick it somewhere else in the hope that things will re-establish themselves. It needs much better, more careful and longer-term planning.

Ten thousand years ago, there was none of this stuff. It has moved and come since. All these plants and animals have moved here during this period. We should not think that we cannot multiply it. We should be planning on the basis that we can, which needs a lot of thought, care and consideration. I declare an interest. I own a PAWS—a plantation on an ancient woodland site. I do not have any ancient woodland but I own a space where one used to be. We should give it careful attention, ensuring that every time we damage a woodland, there is proper consultation and consideration. It should not just be about whether we should lose this bit but about how we, as a local authority, plan to end up with more in a century’s time, rather than saying, “Shall we eat this slice of an ever-diminishing cake now?”.

My Lords, I ought to start by saying that I am a member of the Woodland Trust and therefore protection of woodland is very important to me, so I wholly support the noble Baroness, Lady Young of Old Scone, in her amendment.

Ancient woodland is ancient. The definition of ancient woodland is that it has been around since the 1600s or even longer. The combined effect of a copse or even a small woodland area in biodiversity terms is enormous. The Woodland Trust and others define these areas as being our equivalent of the rainforests in the tropics in the extent of the diversity of nature that is encouraged to live among the trees. So, it is not simply a question of cutting down a tree; it is destroying a habitat. I think that is what we ought to be thinking of and it is exactly what the noble Baroness, Lady Young, thought about.

Some of these ancient woodland areas are homes to threatened or at-risk species, so again it is not just about, “Let’s cut down the old oak tree”; it is about protecting a whole habitat for a huge number of species. The National Planning Policy Framework, which was published last week, has a tiny paragraph saying that

“development resulting in the loss or deterioration of irreplaceable habitats … such as ancient woodland … should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists”.

If only it had ended at “should be refused”. Because if we are, as a country, intent on protecting and enhancing our environment, those bodies of ancient woodland are exactly the sites that we should be protecting in full. What the noble Baroness, Lady Young, is asking, which we on these Benches wholly support, is that we strengthen that protection of ancient woodland, which is a key element of any Government’s environmental protection. So, I thank the noble Baroness for tabling the amendment and if she presses it to a vote, as she has indicated, we will be with her.

My Lords, I shall be brief, because my noble friend Lady Young has set out extremely clearly why her amendment is so important, as have other noble Lords who have spoken. Part of the problem is that we have never really properly appreciated the huge contribution that ancient woodland makes. We have talked about it, but have we actually properly acted on it to protect it in the way that is needed? We know the huge contribution it makes to our environment, through carbon capture for example, but also, as the noble Lord, Lord Lucas, pointed out, it takes absolutely centuries to replace once it has gone.

There is so much talk about offsetting on the environment, but offsetting cannot always provide what is lost. We just need to consider that more. Offsetting is not the easy way to manage these things every time, so we completely support what my noble friend is trying to achieve. To be honest, she is the expert on this and if she is concerned, we should all be concerned, so if she wishes to test the opinion of the House, she will have our strong support.

My Lords, I declare my farming and land management interests in Wales, as set out in the register.

Amendment 233, in the name of the noble Baroness, Lady Young of Old Scone, is substantially the same as the amendment put forward in Committee. I pay tribute to her for her tireless campaigning on the importance of ancient woodlands, as well as to the noble Baroness, Lady Willis of Summertown, for her insight in this debate. While we resisted this amendment in Committee, I am now persuaded that we can and should make a change of direction to capture this proposal in advance of a wider review later. I know that my noble friend Lady Scott of Bybrook has written to the noble Baroness to that effect already.

The intent behind this amendment, and indeed our public commitment to amend the consultation, is already being progressed. Officials from DLUHC and Defra are working with the Woodland Trust, the Forestry Commission and Natural England to develop a suitable amendment to the direction. The ultimate aim is to seek a common position on the meaning of “affecting ancient woodland”, a definition which considers the number of likely referrals to the Secretary of State, alongside how effective they would be at capturing the main points of concern. No legislative or parliamentary processes are required to issue the amendment to the consultation direction. I am therefore confident that an amended direction will be in place by the end of this year.

In addition to progressing the changes to the consultation direction, officials in DLUHC and Defra are delivering on further commitments made regarding ancient woodland and ancient and veteran trees during the passage of the Environment Act. A review of how national planning policy on ancient woodland is being implemented in practice is under way. The aim of the review is to give us a better idea of whether further protections are needed to ensure that these irreplaceable habitats have appropriate protection within the planning system. The findings of this analysis will feed into our wider review of the National Planning Policy Framework, which will be subject to a public consultation.

The noble Baroness, Lady Young of Old Scone, mentioned the losses of and impact on ancient woodlands from HS2. The Government and HS2 Ltd recognise that ancient woodland is an irreplaceable habitat, and the design of the railway has sought to avoid its loss wherever possible. Defra, the Forestry Commission and Natural England have worked with the Department for Transport and HS2 Ltd to ensure that route design and delivery plans minimise any loss of ancient woodlands and veteran trees.

Where effects on ancient woodland cannot be reasonably avoided through design, HS2 Ltd has committed to providing a range of bespoke compensation services for each woodland affected, in line with advice provided by Natural England and the Forestry Commission. HS2 Ltd is working with the Forestry Commission to deliver an additional £5 million HS2 woodland fund on phase 1 and £2 million on phase 2a. This will result in hundreds of additional hectares of woodland creation, in addition to the core compensation planting delivered by HS2 Ltd itself.

Since May 2023, the woodland creation aspect of the fund is now available under the England woodland creation offer, while the restoration of plantations of ancient woodland sites—PAWS—will continue to be administered under the HS2 woodland fund. As of November 2022, the phase 1 HS2 woodland fund has completed 34 projects, which has resulted in 123.6 hectares of new woodland creation and 71.9 hectares of schemes to restore native woodland on plantations on ancient woodland sites.

Where loss of woodland is unavoidable, there is a range of measures, including the translocation of ancient woodland soils and features, salvaging ancient woodland soils and seed banks that would otherwise be lost and translocating those to enhance new woodland planting sites and support the restoration of degraded ancient woodland sites. All the measures, whether they be the creation of a new habitat area or the enhancement of existing habitats, will be supported by long-term management plans and agreements with landowners or third parties where relevant. HS2 Ltd publishes an annual Ancient Woodland Summary Report, providing updates on how the scheme is impacting ancient woodlands and the progress that is being made on delivering the range of compensation measures that have been committed to.

Further to this, in 2021 the Government published the updated keepers of time policy on ancient and native woodland and ancient and veteran trees in England. The statement updates the Government’s policy to recognise the values of these habitats and our objectives to protect and improve them for future generations.

My noble friend Lord Lucas and the noble Baroness, Lady Pinnock, spoke about the need for long-term strategies to protect ancient woodland sites. Since the keepers of time policy was first published in 2005, more than 27,000 hectares of plantations on ancient woodland sites in England have been brought into restoration since 2010. However, the Government are going further and in 2021 they published the updated keepers of time policy on ancient woodland. Managing Ancient and Native Woodlands in England was released in 2010, which provides guidance to help land managers to make appropriate management decisions. The Forestry Commission is working with the Sylva Foundation and partners to make assessment of woodland ecological conditions simpler for users through the development of an app, which will allow us to gather data on the condition of our ancient and native woodlands and monitor progress against our ambitions. In addition to the NPPF review, two additional research projects are under way to understand the impact of development on woodland, through the nature for climate fund and a forest research project.

I hope that I have been able to reassure the noble Baroness and the House that we are doing all that we can to protect these vital ecological infrastructures and that she will be content not to press her amendment.

My Lords, I thank all those who have spoken in support of my amendment as well as those who are silently cheering me on but not speaking, as we are all keen to get on to the debate on nutrient neutrality. I thank the noble Lord, Lord Harlech, for his account of the range of measures that the Government are taking to improve ancient woodland and his commitment—rather surprising, but I was very pleased—to progress on the other commitments that were made on ancient woodlands during the passage of the Environment Act. I have not started campaigning on those yet, but I am grateful for the invitation to do so.

It comes down to the fact that promises are made and sincerely committed to, but there is many a slip ’twixt cup and lip. To be honest, unless we get a clear legislative date for this change to the consultation direction into statute, there is always a risk that it will dribble away—we will have a spring election, everybody who knew anything about it will have disappeared and we will be back to square one. Despite all the assurances all the way through this process from the noble Baroness, Lady Scott, the noble Earl, Lord Howe, and the noble Lord, Lord Harlech, which I very much welcome, I would like to test the opinion of the House.

Amendment 234 had been withdrawn from the Marshalled List.

Amendment 235

Moved by

235: After Clause 128, insert the following new Clause—

“Planning application fees(1) Section 303 of the Town and Country Planning Act 1990 (fees for planning applications etc.) is amended as follows.(2) After subsection (4) insert—“(4A) A local planning authority may make provision as to how a fee or charge under this section is to be calculated (including who is to make the calculation).””Member's explanatory statement

This new Clause would allow local authorities to set the fees for planning applications, in order that the cost of determining an application is reflected by the fee charged.

I thank the noble Earl, Lord Howe, who is not in his place, for the long and careful response he gave to the amendment on planning fees, tabled by the noble Lord, Lord Young of Cookham, and me. It is a practical amendment to ensure that council tax payers are not required to subsidise applications from developers, and to provide an effective and efficient planning service. Unfortunately, I was disappointed with the response from the noble Earl, so I would like to test the opinion of the House.

Amendments 236 to 241 not moved.

Consideration on Report adjourned until not before 3.45 pm.

Sitting suspended.