Tuesday 18th July 2023
(1 year, 5 months ago)
Lords ChamberLevelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 142-IV Fourth marshalled list for Report - (18 Jul 2023)
16:06 - Division on Amendment 67 - Ayes: 195 / Noes: 216 - Amendment 67 disagreed.
17:33 - Division on Amendment 68 - Ayes: 185 / Noes: 221 - Amendment 68 disagreed.
Baroness Randerson (LD)
My Lords, I wish to state our strong support on these Benches for this amendment; indeed, had I been confident in advance that I was going to be able to be here to speak this afternoon, I would have added my name to it.
In 2017, I put down a similar amendment to what was then the Bus Services Bill. The similar issue was one that we raised from these Benches in Committee. This levelling up Bill gives us an opportunity to halt and reverse the decline in bus services outside London, which has been evidenced since the so-called deregulation of bus services in the 1980s. I will not repeat the points made by noble Baronesses, but it is clear to us all that urgent and radical action is needed to stem the crisis.
The problem in 2017 with the Bus Services Act was that the Government could not bring themselves to concede that deregulation had played a key role in the decline of bus services. The Act allowed franchising and other forms of additional control for local authorities but only for larger authorities; it did not trust smaller authorities to do this. With support, there is no reason why they should not be able to do this. Further, the Act did not allow local authorities to set up their own bus companies, which is totally contrary to the evidence. Some of the very best bus companies in Britain are those heritage bus companies that are still owned and run by local authorities.
Let me give one example of the sort of thing that might happen if local authorities had this power. If a local authority of modest size finds that its local commercial company is going to cut the vital bus services that enable links between the town centre and the local further education college, it might set up its own bus company specifically to enable young people going to that college, as well as shoppers going into the next town, to use those services—it does not always have to be on an enormous scale. Who understands better than the local council what will work in local neighbourhoods? The local council is the organisation that understands local traffic patterns, the best routes, where to find most people with no access to a car and so on. If we truly want to level up, we have to improve bus services, which are disproportionately used by the oldest, the youngest and the poorest in our society, in order to enable them to access work, education, health and other vital social services. I support the amendment.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Taylor, for introducing her amendment. I am happy to say that the sentiment behind it is one with which we agree. What is more, the kind of powers that the noble Baroness is seeking already exist.
All local authorities are required to improve their local bus services through the delivery of a bus service improvement plan, BSIP, to qualify for government funding. Local authorities must decide whether to deliver improvements on the ground via a statutory enhanced partnership with their local bus operators or to pursue a franchising assessment that would allow them to operate their buses through local service contracts, in the same way that Transport for London operates buses in the capital. The Transport Act 2000, brought in by the last Labour Government, provides automatic access to franchising powers for all mayoral combined authorities in England.
Lord Bradshaw (LD)
My Lords, does the Minister agree that one of the major problems with the bus industry is the lack of adequate reimbursement of concessionary fares? The burden of reimbursement has fallen on local authorities, which have virtually no money. This is a very important point, and it undermines the viability of the bus industry.
Earl Howe (Con)
My Lords, I am grateful to the noble Lord, but I think several factors have impacted on the use of buses and the ability of local authorities to run satisfactory services. I shall certainly ensure that the point he has made is registered in the Department for Transport, and I am grateful to him.
Baroness Taylor of Stevenage (Lab)
My Lords, I am grateful to noble Lords who have taken part in this debate and thank the noble Baroness, Lady Bennett, for co-signing the amendment. She referred to the link between bus services and people’s economic activity, and the noble Baroness, Lady Randerson, referred to the link with education and skills training; both are very important points. I am grateful to the noble Baroness, Lady Randerson, for her support in this. She also said that the Bill gives us the opportunity to reverse the decline in bus services, and I genuinely believe that this is the quickest way to go forward with that.
It requires a deal of trust between the Government and local authorities, and on many occasions in the debates on the Bill we have had evidence to suggest that we need to demonstrate the new relationship needed between the Government and local government before we can go forward and make real progress on devolution. To me, good public transport is axiomatic with levelling up. We have to have it to make levelling up work at all.
I am grateful to the noble Earl, Lord Howe, for his usual thorough reply, but there is clearly a disconnect between what powers the Government think they have given to local government and what local government is experiencing. The councillor I referred to was the transport portfolio holder for Hertfordshire County Council. He clearly does not think it has the powers to deal with transport in the way that he would want to. Something is clearly not right somewhere with all this. I understand the points about BSIPs and statutory enhanced partnerships, but it seems that the powers are conditional on approval from the Government, and we would like a relationship of trust in which these powers are given to any council transport authority that wishes to have them.
The noble Lord mentioned the important issue of fares. Funding comes into this, of course. The cuts to rural services bus grants, for example, make the provision of bus services in those areas very difficult.
For all those reasons, I am not convinced that we have a clear link to local authorities setting up their own bus companies or franchising services themselves, so I would like to test the opinion of the House.
Baroness Taylor of Stevenage (Lab)
My Lords, I hoped we were hearing the voice of future generations up in the Gallery when the noble Baroness, Lady Pinnock, was speaking. Perhaps they were reminding us to think about affordable housing. The noble Lord, Lord Lansley, said that affordable housing was at the heart of some of this debate, and that is certainly the view of our Benches.
The noble Baroness, Lady Pinnock, set out the issues relating to the infrastructure levy that are causing such great concern across the sector. As she mentioned, this has resulted in an unprecedented step in my time in local government, with over 30 key organisations writing jointly to the Secretary of State to set out their concerns. They are united in saying that the introduction of the infrastructure levy could
“make it harder, not easier, for local leaders and communities to secure the benefits of new development”.
They point to the developer contributions that are being generated by the community infrastructure levy and Section 106 systems, which generated £7 billion in 2018-19 to support housing, infrastructure and services. I share their concerns that this new levy has the potential to reduce this amount.
I take the point made by the noble Lord, Lord Lansley, about the discussions that we have already had in Committee, but these views have been expressed by powerful bodies in our sector. His points about the design of the system are well made, but that should have been considered before the Bill came to the House. Points from the noble Lord, Lord Young, about trying to operate this discussion on a key part of the Bill in a vacuum are also well made.
The main concern of the organisations that wrote to the Secretary of State is the potential for this reform to
“leave communities with fewer new social and affordable homes, mixed and balanced developments and less of the infrastructure they need”.
They fear that the “upheaval” of introducing a new system would build delays and uncertainty into the planning system at a time when there is an urgent need to deliver affordable housing quickly, and that CIL and Section 106 would
“not be improved by these reforms”
and would need to be managed alongside the new levy. They welcome the principle of allowing authorities to borrow against developer contributions, but point out that the financial risk of doing so, when the final assessed amounts are “uncertain”, would probably be too great for local government finance officers.
In addition to the risks flagged by these key representatives of the sector, it is not yet clear what impact the infrastructure levy will have on permitted development. At present, developers engaging in permitted development make little, if any, contribution to infra- structure, in particular to affordable housing. This anomaly also needs to be resolved in any new infrastructure levy system.
I am grateful to many of the organisations that signed that letter which have also been kind enough to send us briefing material, and to the office of the Mayor of London, which has provided us with very strong evidence about the potential detrimental impact this would have on building more affordable housing in London. Its figures suggest that, had the levy been in place over the last five years, it would have resulted in between 4,500 and 10,000 fewer affordable homes, and could have made up to 30,000 homes of all tenures unviable.
We completely understand the need to ensure that developments provide the infrastructure to support them, but this proposed new levy adds layers of complexity, because it is being grafted on to an already complex system. The money that developers will have to pay to support transport, schools, health centres, open and play space, and, critically, affordable housing will be calculated once a project is complete instead of at the planning stage, as it is currently. This has resulted in concerns that the funding will be delayed or, potentially, lost altogether. The charging system will be complex and labour-intensive, putting further pressures on the local authority planning departments that we know are already at breaking point.
The reply to the organisations that wrote to the Secretary of State from the Minister responsible, Rachel Maclean, said that she would be looking at the issues they raised in detail and would be organising a round table very shortly. I believe that round table may have taken place in very recent days. However, as the sector has been raising these concerns since the infrastructure levy was first mooted, it is a shame the round table did not take place many months ago.
We accept that the Government have made some concessions on the infrastructure levy clauses, but they do not meet the basic challenge of explaining to the sector just how this new proposal will deliver more resources more effectively than the current system. For that reason, if the noble Baroness, Lady Pinnock, wishes to test the opinion of the House on her amendment, she will have our support. We understand that Amendment 90 is consequential to Amendment 68.
Turning to other amendments in this group, we hope the Government recognise the importance of the infrastructure levy supporting the delivery of the levelling- up missions. Our concern all through the passage of the Bill has been what mechanisms there are to link the missions to planning, funding and the infrastructure levy. My Amendment 69 to Schedule 12 is intended to address this, as well as ensuring that there is a commitment to the infrastructure levy being shared between tiers of local government in non-unitary areas.
My Amendment 70A wound enshrine in the Bill that the application of the infrastructure levy is optional. I am very grateful, as others have said, to the Minister for the many discussions we have had in relation to the Bill, in particular this part of it. I believe, and hope she will confirm, that it is the Government’s intention that infrastructure levies should be optional, and that government Amendment 82 enshrines this in the Bill.
Amendment 71, in the name of the noble Lords, Lord Best and Lord Young, and my Amendment 71A have similar intentions of ensuring that the level of affordable housing funded by developers in the local authority area will meet the needs of that area as set out in the local development plan. I referred to the critical links that need to be built between planning and the infrastructure levy earlier on. When it comes to affordable housing, this is absolutely essential. We recognise the very significant concessions the Government have made on affordable housing, so, rather than pushing Amendment 71A to a vote, perhaps we can have further discussions before the planning and housing sections of the Bill to build that link between the provision of affordable housing through the infrastructure levy and the local plan.
The noble Lord, Lord Stunell, gave clear evidence of the principle behind the current definition of affordable housing. We agree that the current definition is wholly deficient, as much of the housing included in it is absolutely not affordable to many of those in desperate need of housing. We feel that the Government should take an inclusive approach to developing a new definition by working with the sector and housing charities to reach an agreed, appropriate definition of affordable housing. We would support the proposal in the amendment from the noble Lord, Lord Stunell, that a link with the median income in the relevant local planning area would be a good starting point for this definition.
As mentioned by the noble Lord, Lord Best, we are very grateful to the Minister for tightening up the wording she introduces in Amendments 72, 73 and 75 to ensure that developers must now “seek to ensure” the affordable housing funding level is maintained. We are also grateful for her clarification in Amendment 74 that funding of affordable housing is to be provided in the charging authority’s area and, in Amendment 79, that charging authorities can require on-site provision of affordable housing through the infrastructure levy. We believe this change will encourage the development of mixed housing and hopefully mixed tenure communities, which have proved over time to be far more sustainable and successful.
We are also pleased to see government Amendment 80, which requires a report to be laid before Parliament on the impact that the infrastructure levy is having on the provision of affordable housing. It perhaps does not go as far as our Amendment 81, which would have made provision for a new levy to be introduced where IL was shown not to be successful, but we recognise that the Minister has listened to our concerns and we hope that placing a report before Parliament on the success, or otherwise, of IL will encourage further thinking if it is shown not to be delivering.
We have some concerns, which we have shared with the Minister, in relation to Amendment 76 on the thorny issue of viability. Our concern is that this clause, which allows the infrastructure levy to be disapplied where the charging authority considers the application of the levy, including its provision for affordable housing, would make the development unviable. The process of negotiation on infrastructure contributions between local planning authorities and developers can be very long and complex, especially when major developments are involved. We would not want to see any further pressure being put on local authorities in that negotiation process by having this clause dangled in front of them as an incentive for developers to proceed. It has been hard enough in the existing system to resist the weight of financial and legal expertise that the developers have put into these discussions, as mentioned by the noble Lords, Lord Best and Lord Young. We do not want to give them another weapon in their armoury—we do not think that is necessary.
I am grateful to the noble Lord, Lord Young, for setting out the potentially devastating impact the viability get-out clause can have on affordable housing. The noble Earl, Lord Lytton, referred to the inclusion of contingencies in that viability calculation. When you start to pick apart that contingency—I have done it—it is very interesting to see what sits underneath it, which is often some very wild assumptions in my experience. I am sure that that is not always the case, but it can be.
The noble Lord, Lord Lansley, is right to flag up in his Amendment 77 the question of the relationship between Section 106 contributions, which have been most effective in securing affordable housing through planning contributions, and the infrastructure levy. Lastly, we welcome the amendments in the name of the noble Lord, Lord Lansley, which would require a response to the technical consultation on the infrastructure levy before it comes into force.
In summary, we feel that an opportunity has been missed by introducing IL to be grafted on to an already complex system instead of using this Bill for a new, simplified and comprehensive approach to the provision of infrastructure developed with and for the sector, and with an implementation plan to smooth the transition so that it would not disrupt local authorities from the urgent work of solving the housing crisis. However, I once again thank the Minister for the amount of her time she has given to meet noble Lords on this subject and for the amendments that have subsequently come forward. It is the best of this House that the expertise we have here is used to improve legislation, and I am sure today’s debates are a good example of that.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, Amendments 68 and 90, tabled by the noble Baroness, Lady Pinnock, seek to remove the provisions in the Bill which provide the imposition of the new infrastructure levy in England. I regret that these amendments have been proposed, but I recognise the need for serious and open debate on this subject.
We covered the shortcomings of the existing system of developer contributions at length in Committee. There is a clear case for reform. Since 2010, average new-build house prices have risen by more than £250,000, and land prices have also risen substantially. This increase in value must be captured within the levy system, allowing for more local benefit, but we recognise the need to get these significant reforms right. That is why I can commit to the House today that the Government will undertake a further consultation on fundamental design choices before developing infrastructure levy regulations. Through further consultation and engagement, and the test-and-learn approach, which we discussed in detail in Committee, we will seek to ensure that the levy achieves its aims and that it is implemented carefully. I hope the noble Baroness, Lady Pinnock, will feel able to withdraw Amendment 68 and will not press Amendment 90.
My noble friend Lord Lansley has tabled Amendments 311 and 312, which seek to prevent the introduction of the infrastructure levy until the Government have published proposals for its implementation. I know that my noble friend has formally responded to the recently concluded technical consultation, which we are carefully reviewing. I can confirm that we will not commence the levy provisions in Part 4 until we have responded to that further round of consultation. The regulations themselves will be consulted on in future as well. I hope my noble friend Lord Lansley is therefore content not to press his Amendments 311 and 312. I assure him that he is correct: there is scope in the Bill for us to vary the approach set out in the technical consultation, and I reiterate that, if we do that, we will be consulting further.
Lord Lansley (Con)
I apologise for interrupting my noble friend but, among the powers that have been taken, is she anticipating that the design choices yet to be made will include whether local authorities may set their charging schedule by reference to gross development value or, in certain circumstances, may choose to use floorspace charging, as they do under CIL at present?
Baroness Scott of Bybrook (Con)
My noble friend is absolutely right: these will come out as we go through the consultation and further design stages.
Government Amendment 93 is consequential on legislation which is already on the statute book; namely, the Judicial Review and Courts Act 2022. It brings the enforcement provisions relating to the community infrastructure levy in line with the enforcement provisions relating to the new levy, which in turn reflect the provisions in the 2022 Act, creating a consistent, coherent cross-government policy on sentencing law.
We believe that we have a strong case for proceeding with the new infrastructure levy and have built in safeguards to ensure that development can progress with vital mitigations in place. We recognise that introducing the infrastructure levy is a significant change to the existing system. That is why we propose to introduce the levy via a test and learn approach. If the levy is found to have negative impacts in the context of one particular local authority, the Secretary of State will have the flexibility to disapply the levy in that authority for a specified time period.
In any system of developer contributions there are trade-offs between seeking simplicity and at the same time enabling individual site circumstances to be catered for. These are tricky balances to strike, and if our initial policy design leans too far in one direction or another, it may impact on the pace at which development can come forward. It is likely that revisions will be required of the initial levy regulations, as occurred with the community infrastructure levy, as the system beds in. While we do not expect these to be substantial, it will give local authorities confidence that the system will be flexible and able to be adjusted to experience on the ground. We do not expect the power to disapply the levy to be used often—if at all. However, it is a sensible, inbuilt precautionary power to cater for all circumstances.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment, taken together with the amendments to Schedule 12 in the Minister’s name at lines 34 and 38 on page 410, change the duty in subsection (2) of new section 204G of the Planning Act 2008 from one of having regard to the desirability of ensuring that the level of affordable housing funding provided by developers is maintained to one of having to seek to ensure that level can be maintained.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment is consequential on the amendment in the Minister’s name to Schedule 12 at line 9 of page 431.
Baroness Scott of Bybrook
“204YA Parliamentary scrutiny: affordable housing(1) The Secretary of State must prepare a report which—(a) provides information, in relation to each charging authority which charges IL in respect of development in its area, about the amount of affordable housing provision that has been funded by IL charged by that authority, (b) assesses whether the charging of IL has resulted in more or less affordable housing being available in areas in respect of which IL is charged than would otherwise be the case, and(c) sets out such other information as the Secretary of State considers appropriate in connection with the effect of IL on the provision, improvement, replacement, operation or maintenance of affordable housing or other infrastructure.(2) The Secretary of State must lay the report before each House of Parliament before the end of the period of 5 years beginning with the date on which the first charging schedule takes effect under this Part.(3) The Secretary of State must publish the report as soon as is reasonably practicable after it has been laid before each House of Parliament.”Member's explanatory statement
This amendment places a duty on the Secretary of State to prepare a report relating to the effect of infrastructure levy on the funding and provision of affordable housing (and certain other matters), lay that report before Parliament and publish it.
Baroness Scott of Bybrook
“(ba) may disapply any provision made by or under this Part in relation to an area, or a charging authority, specified or described in the regulations,”Member's explanatory statement
This amendment enables new Part 10A of the Planning Act 2008, and any regulations made under it, to be disapplied in relation to an area or charging authority, so that infrastructure levy does not have to be charged in that area or (as the case may be) by that authority.
Earl Howe
“ScheduleRegulations under Chapter 1 of Part 3 or Part 6: restrictions on devolved authoritiesNo power to make provision outside devolved competence
1 (1) No provision may be made by a devolved authority acting alone in regulations under Chapter 1 of Part 3 or Part 6 unless the provision is within the devolved competence of the devolved authority.(2) See paragraphs 5 to 7 for the meaning of “devolved competence”.Requirement for consent where it would otherwise be required
2 (1) The consent of a Minister of the Crown is required before any provision is made by the Welsh Ministers acting alone in regulations under Chapter 1 of Part 3 or Part 6 so far as that provision, if contained in an Act of Senedd Cymru, would require the consent of a Minister of the Crown.(2) The consent of the Secretary of State is required before any provision is made by a Northern Ireland department acting alone in regulations under Chapter 1 of Part 3 or Part 6 so far as that provision would, if contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State.(3) Sub-paragraph (1) or (2) does not apply if—(a) the provision could be contained in subordinate legislation made otherwise than under this Act by the Welsh Ministers acting alone or (as the case may be) a Northern Ireland devolved authority acting alone, and(b) no such consent would be required in that case.(4) The consent of a Minister of the Crown is required before any provision is made by a devolved authority acting alone in regulations under Chapter 1 of Part 3 or Part 6 so far as that provision, if contained in—(a) subordinate legislation made otherwise than under this Act by the devolved authority, or(b) subordinate legislation not falling within paragraph (a) and made otherwise than under this Act by a Northern Ireland devolved authority acting alone,would require the consent of a Minister of the Crown.(5) Sub-paragraph (4) does not apply if—(a) the provision could be contained in—(i) an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly, or (ii) different subordinate legislation of the kind mentioned in sub-paragraph (4)(a) or (b) and of a devolved authority acting alone or (as the case may be) other person acting alone, and(b) no such consent would be required in that case.Requirement for joint exercise where it would otherwise be required
3 (1) No regulations may be made under Chapter 1 of Part 3 or Part 6 by the Scottish Ministers, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Scottish Ministers acting jointly with a Minister of the Crown, unless the regulations are, to that extent, made jointly with the Secretary of State.(2) No regulations may be made under Chapter 1 of Part 3 or Part 6 by the Welsh Ministers, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Welsh Ministers acting jointly with a Minister of the Crown, unless the regulations are, to that extent, made jointly with the Secretary of State.(3) No regulations may be made under Chapter 1 of Part 3 or Part 6 by a Northern Ireland department, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by—(a) a Northern Ireland department acting jointly with a Minister of the Crown, or(b) another Northern Ireland devolved authority acting jointly with a Minister of the Crown,unless the regulations are, to that extent, made jointly with the Secretary of State.(4) Sub-paragraph (1), (2) or (3) does not apply if the provision could be contained in—(a) an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly without the need for the consent of a Minister of the Crown, or(b) different subordinate legislation made otherwise than under this Act by—(i) the Scottish Ministers acting alone,(ii) the Welsh Ministers acting alone, or(iii) (as the case may be), a Northern Ireland devolved authority acting alone.Requirement for consultation where it would otherwise be required
4 (1) No regulations may be made under Chapter 1 of Part 3 or Part 6 by the Welsh Ministers acting alone, so far as they contain provision which, if contained in an Act of Senedd Cymru, would require consultation with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.(2) No regulations may be made under Chapter 1 of Part 3 or Part 6 by the Scottish Ministers acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Scottish Ministers after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.(3) No regulations may be made under Chapter 1 of Part 3 or Part 6 by the Welsh Ministers acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Welsh Ministers after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.(4) No regulations may be made under Chapter 1 of Part 3 or Part 6 by a Northern Ireland department acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by a Northern Ireland department after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.(5) Sub-paragraph (2), (3) or (4) does not apply if—(a) the provision could be contained in an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly, and(b) there would be no requirement for the consent of a Minister of the Crown, or for consultation with a Minister of the Crown, in that case.(6) Sub-paragraph (2), (3) or (4) does not apply if—(a) the provision could be contained in different subordinate legislation made otherwise than under this Act by—(i) the Scottish Ministers acting alone,(ii) the Welsh Ministers acting alone, or(iii) (as the case may be), a Northern Ireland devolved authority acting alone, and(b) there would be no requirement for the consent of a Minister of the Crown, or for consultation with a Minister of the Crown, in that case.Meaning of devolved competence
5 A provision is within the devolved competence of the Scottish Ministers if—(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or(b) it is provision which could be made in other subordinate legislation by the Scottish Ministers.6 A provision is within the devolved competence of the Welsh Ministers if—(a) it would be within the legislative competence of Senedd Cymru if it were contained in an Act of the Senedd (including any provision that could be made only with the consent of a Minister of the Crown), or(b) it is provision which could be made in other subordinate legislation by the Welsh Ministers.7 A provision is within the devolved competence of a Northern Ireland department if—(a) the provision—(i) would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly, and(ii) would not, if contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State,(b) the provision—(i) amends or repeals Northern Ireland legislation, and(ii) would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly, and would, if contained in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State, or (c) the provision is provision which could be made in other subordinate legislation by any Northern Ireland devolved authority.Interpretation
8 In this Schedule—“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;“Northern Ireland devolved authority” means the First Minister and deputy First Minister in Northern Ireland acting jointly, a Northern Ireland Minister or a Northern Ireland department;“subordinate legislation” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018.”Member's explanatory statement
This amendment inserts a new Schedule (Regulations under Chapter 1 of Part 3 or Part 6: restrictions on devolved authorities) which contains various provision about the restrictions on devolved authorities when making regulations under Chapter 1 of Part 3 or Part 6.
Earl Howe (Con)
My Lords, I shall speak also to the many other government amendments in this group. Let me start by expressing my thanks to noble Lords who have debated and laid amendments relating to devolved matters. The government amendments in this group reflect the discussions with the devolved Administrations in respect of this part of the Bill and speak to the substance of the other amendments that have been laid on this topic.
The Government’s amendments provide the devolved Administrations with concurrent powers to replace strategic environmental assessments and environmental impact assessments with environmental outcomes reports in devolved areas, and make corresponding amendments to Part 3 in respect of planning data associated with environmental outcomes reports.
In providing concurrent powers across the four nations, the Bill would allow each Administration to tailor environmental assessment to their needs, while retaining the ability to manage interaction and interoperability going forward. The amendments do not introduce a requirement for devolved Administrations to bring forward environmental outcomes reports, but they would see to it that each Administration has the necessary powers to ensure the existing system can continue to function as regimes reform over time.
In light of the growing need for collaboration across the four Administrations on pressing matters like climate change and energy security, and to ensure that the UK remains an attractive place to invest and deliver major infrastructure projects, the UK Government feel that there are significant benefits to maintaining an effective framework of powers across the UK. The current clauses contain a limited power for the UK Government to legislate in areas of devolved competence where the devolved Administrations of Scotland, Wales and Northern Ireland have been consulted. We have been clear since introduction that this was a placeholder clause to reduce the risk of a harmful legislative gap while negotiations with the devolved Administrations were under way. Therefore, these amendments also amend the powers in Part 6 to ensure that the Secretary of State will need the consent of Wales and Northern Ireland where EOR regulations affect matters of their devolved legislative competence.
At this stage, following discussions with the Scottish Government, the provisions for Scotland do not include this same consent mechanism for matters relating to devolved legislative competence, and the UK Government retain the ability to legislate in areas of devolved competence for Scotland, subject to a duty to consult. It is absolutely vital for the UK Government to preserve, in limited circumstances, the ability to legislate UK-wide to ensure assessments can continue to work across our different regimes. Unfortunately, the Scottish Government currently do not wish to support the necessary legislative framework for this to function. We are continuing to engage with the Scottish Government and stand ready to bring forward further amendments once these discussions have run their course.
As is currently the case, the Government would only ever legislate in areas of devolved competence where absolutely necessary, and only after careful consideration and consultation with the Scottish Government. I therefore hope the House will support these amendments and beg to move Amendment 91 in my name.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I rise to speak in favour of Amendments 111, 115, 120 and 121, in my name, which relate directly to devolved competence. I thank the Minister and his ministerial colleague, the noble Baroness, Lady Scott, for their very helpful meeting last week. Obviously, as I indicated to them, I still have residual concerns, particularly in relation to Northern Ireland, about which I will ask a couple of questions at the conclusion.
As the Minister said, Clause 148 requires the UK Government to consult with Ministers of devolved Administrations should EOR regulations fall within their competence. This is a weak requirement which could lead to EOR regulations being imposed on devolved nations without the consent of their Administrations. This provides a further risk of environmental regression, should EOR regulations impose weaker requirements than those put in place by the devolved Governments.
The wording of Clause 148 is particularly problematic for Northern Ireland as it requires the Secretary of State only to consult with a Northern Ireland department, potentially bypassing elected representatives in Northern Ireland. As a former Minister in the Northern Ireland Executive, I fully recognise and acknowledge that this requirement to vest powers in a department rather than a Minister goes back to 1921, when the original Northern Ireland Parliament was established. I will be asking that both the Minister and his ministerial colleagues have immediate and ongoing discussions with the Secretary of State for Northern Ireland and his Ministers to see if they can find an all-encompassing way of addressing that and ensuring that power is restored to Ministers, even though we do not have a devolved Administration at the moment. That is not the fault of this provision, but I do recall that this was problematic when we were Ministers in the Executive, because it is unlike what happens in other Administrations.
As the Minister has said, in Committee on 18 May the Minister stated that the UK Government were having discussions with the devolved Governments. I think the Minister has already underlined today how these powers should operate. These discussions and the continued concern expressed by parliamentarians should lead to a swift amendment of the Bill to uphold devolved competencies and prevent environmental regressions. Amendments 111, 115 and 120 in my name would achieve this by requiring Ministers to secure the consent of a devolved Administration before setting those EOR regulations within the competence of that Administration, rather than merely consult it. Amendment 121 would also require consent for EOR regulations to be given by Ministers of the Northern Ireland Executive, rather than by a Northern Ireland department, providing a closer link between elected representatives in Northern Ireland and the regulations.
I recognise that the Government have tabled a series of amendments to respond to the concerns raised in Committee and by the amendments I have tabled, but the government amendments do not go far enough. No concession, for example, has been made on Scotland. I realise from the supplementary document we received today from officials that Wales seems to be relatively content, but there are still problems in relation to Northern Ireland. I repeat: what happens in the case of Northern Ireland, where we do not have a devolved Government and Assembly in place? Who do those consultations take place with, and who is the decision-maker in that instance? On the wider power vested in a Northern Ireland department, rather than a Minister, will the Minister undertake to look at this with the Secretary of State for Northern Ireland and to address the anomaly presented by the legislation back in 1921 to ensure that is corrected, and to vest power in Ministers?
In conclusion, I honestly believe that the Government should resolve the inconsistencies created by this suite of government amendments and fully adopt the approach proposed in my amendments. It constitutes a similar approach to all the devolved settlements and the democratic choices made by the people of Scotland, Wales and Northern Ireland.
Baroness Hayman of Ullock (Lab)
My Lords, I want briefly to comment on the amendments in the name of my noble friend Lady Ritchie of Downpatrick. She talked about her concerns about Clause 148 and its weak requirement regarding the devolved nations. She particularly talked about the fact that it is problematic for Northern Ireland, and we note that there are concerns about the regression risk that this part of the Bill could bring. She also mentioned the fact that the Scottish Government have expressed their opposition to the Bill on those grounds. In Committee on 18 May, the noble Earl stated that the UK Government were having
“discussions with the devolved Governments on how these powers should operate”.—[Official Report, 18/5/23; col. 447.]
We believe that the amendments tabled by my noble friend help to resolve the concerns expressed by requiring Ministers to secure the consent of a devolved Administration before setting EOR regulations within the competence of that Administration, rather than simply consulting them. We very much support the amendments in the name of my noble friend.
It is worth pointing out that this means that there has still been no movement regarding Scotland, and it would be good to know that those discussions are still ongoing to try to make some progress.
A concern to mention briefly on the government amendments is around those that relate to the habitats regulations. The Bill allows for changes to the existing regulations with only a vague non-regression commitment in Clause 147. I just point out that this is why I have Amendment 106 in group 5, which creates a robust non-regression test, and that is one reason I tabled that—just to tie the two groups together, so that the noble Earl has some frame of reference on where we are coming from on that. Having said that, if he can provide further clarity on the issues raised by my noble friend, I am sure we will be very grateful.
Earl Howe (Con)
My Lords, I am, as ever, grateful to noble Lords who have spoken and, in particular, to the noble Baroness, Lady Ritchie, for the way in which she spoke to her amendments and for her experience in devolved matters generally. She will have heard that we consider that the Government’s amendments speak to the substance of her amendments and, in fact, go further in extending the powers to make EOR regulations for all of the devolved Administrations.
The Government consider it crucial that these powers are made available across the United Kingdom to allow for continued close co-operation and interoperability between environmental assessment regimes across the UK. Securing this ability to work together across the different jurisdictions reduces the risk of harmful divergence. This is particularly crucial for areas such as offshore wind, where minimising delay and cost is vital if we are to meet our environmental commitments and achieve energy security.
The noble Baroness, Lady Ritchie, spoke of these powers being imposed on devolved Administrations. The first point to make in that context is that there is no obligation or time limit under the powers for the devolved Administrations to use the powers that Part 6 would grant them. The powers would be exercisable at the discretion of the devolved Administrations if they chose to use them. However, these are powers that would allow devolved Administrations broad scope to implement their own new system of environmental assessment.
In addition, the model would mean that, where assessment is needed under both EOR and an existing EIA/SEA regime, whether in Scotland, England, Wales or Northern Ireland, the development or plan need satisfy only one of the regimes, avoiding the need for duplication. Without the ability to adopt EOR, the UK Government and the devolved Administrations would have no interoperability and gradually increasing divergence, and that could mean certain projects or plans requiring assessment under two separate regimes far into the future, which, as is obvious, could lead to a chilling effect on development of certain types and in certain locations, as well as cross-border plans. Devolved Administrations adopting these powers would not completely remove the risk of divergence, as the current powers model would allow devolved Administrations complete discretion on what their system of environmental assessment looks like, but it would retain the potential for continued alignment where this is considered beneficial.
The noble Baroness raised a number of points and questions about Northern Ireland, and I shall ensure that these are taken up at departmental level and that the department keeps in touch with her about the action being taken. I just pick up the issue she raised of the absence of an Executive in Northern Ireland. In the current situation, with the Assembly not sitting, Northern Ireland is clearly not in a position to provide legislative consent for the Bill, so in respect of Part 6, the UK Government propose to extend these powers to Northern Ireland on the same basis as that agreed with the Welsh Government. This is not a decision that the UK Government have taken lightly, but we believe it is the right approach in these circumstances, as it preserves the opportunity for reform for a future Executive in a way that preserves the unique situation on the island of Ireland.
Legislating in this way provides Northern Ireland with safeguards on the use of these powers that would ensure that the consent of relevant Northern Ireland departments was required if the UK Government wished to use the powers in Part 6 to legislate for matters within devolved legislative competence. Not extending the powers in this way would mean the loss of these safeguards, as well as the loss of the opportunity for the Northern Ireland Executive to benefit from these powers once the Executive have been restored.
I am conscious that the noble Baroness has sought to introduce amendments for each of the devolved Administrations. While the Government share the noble Baroness’s view that it would be best for each Administration to be placed on an even footing, at this stage the amendments provide the Scottish Government with concurrent powers, but on slightly different terms from those of Wales and Northern Ireland. However, we are continuing to engage with the Scottish Government on this issue and remain open to extending the same provisions to the Scottish Government to place each Administration on the same footing, should they agree to that. On the basis of discussions continuing, I hope that the noble Baroness will not feel the need to press her amendments.
Baroness Scott of Bybrook
“ScheduleExisting environmental assessment legislationPart 1United Kingdom and England and WalesUnited Kingdom and England and Wales
• Schedule 3 to the Harbours Act 1964 (procedure for making harbour revision and empowerment orders) so far as relating to environmental impact assessments;• Part 5A of the Highways Act 1980 (environmental impact assessments);• Sections 13A to 13D of the Transport and Works Act 1992 (environmental impact assessments);• The Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 (S.I. 1999/360);• The Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/1672);• The Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999 (S.I. 1999/1783);• The Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 (S.I. 1999/2228);• The Nuclear Reactors (Environmental Impact Assessment for Decommissioning) Regulations 1999 (S.I. 1999/2892);• The Pipe-line Works (Environmental Impact Assessment) Regulations 2000 (S.I. 2000/1928);• The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (S.I. 2003/164);• The Environmental Assessment of Plans and Programmes Regulations 2004 (S.I. 2004/1633);• The Transport and Works (Applications and Objections Procedure)(England and Wales) Rules 2006 (S.I. 2006/1466) so far as dealing with environmental matters; • The Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 (S.I. 2006/2522);• The Marine Works (Environmental Impact Assessment) Regulations 2007 (S.I. 2007/1518);• The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (S.I. 2017/571);• The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (S.I. 2017/572);• The Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017 (S.I. 2017/580);• The Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (S.I. 2020/1497).Part 2ScotlandScotland
• Sections 20A to 22B and 55A to 55D of the Roads (Scotland) Act 1984 (environmental assessment of certain road construction and improvement projects);• The Public Gas Transporter Pipeline Works (Environmental Impact Assessment) (Scotland) Regulations 1999 (S.S.I. 1999/1672);• The Transport and Works (Scotland) Act 2007;• The Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007;• The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/101);• The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/102);• The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/113);• The Agriculture, Land Drainage and Irrigation Projects (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/114);• The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (S.S.I. 2017/115).Part 3WalesWales
• The Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 (S.I. 2004/1656);• The Town and Country Planning (Environmental Impact Assessment) (Undetermined Reviews of Old Mineral Permissions) (Wales) Regulations 2009 (S.I. 2009/3342);• The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2016 (S.I. 2016/58);• The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017 (S.I. 2017/565);• The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 (S.I. 2017/567).Part 4Northern IrelandNorthern Ireland
• Part V of the Roads (Northern Ireland) Order 1993 (S.I. 1993/3160 (N.I. 15));• The Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999 (S.R. (N.I.) 1999/73);• The Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004 (S.R. (N.I.) 2004/280); • The Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005 (S.R. (N.I.) 2005/32);• The Environmental Impact Assessment (Forestry) Regulations (Northern Ireland) 2006 (S.R. (N.I.) 2006/518);• The Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007 (S.R. (N.I.) 2007/421);• The Planning Act (Northern Ireland) 2011 (c. 25 (N.I.)).”Member's explanatory statement
This amendment inserts a new Schedule (Existing environmental assessment legislation) which lists existing environmental assessment legislation.
Baroness Scott of Bybrook
“Enforcement of Community Infrastructure Levy(1) In section 218 of the Planning Act 2008 (enforcement), for subsections (11) and (12) substitute—“(11) Regulations under this section creating a criminal offence may not provide for—(a) imprisonment for a term exceeding the maximum term for summary offences, on summary conviction for an offence triable summarily only,(b) imprisonment for a term exceeding the general limit in a magistrates’ court, on summary conviction for an offence triable either way, or(c) imprisonment for a term exceeding 2 years, on conviction on indictment.(12) In subsection (11)(a), “the maximum term for summary offences” means—(a) in relation to an offence committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months;(b) in relation to an offence committed after that time, 51 weeks.””Member's explanatory statement
This amendment amends section 218 of the Planning Act 2008 to bring the enforcement provisions relating to the community infrastructure levy in line with the new enforcement provisions relating to the infrastructure levy (see new section 204S of the Planning Act 2008 inserted by Schedule 12 to the Bill). These provisions reflect changes to sentencing law.
Earl Howe
Member's explanatory statement
This amendment is consequential on the amendment in the Minister’s name to Clause 133 at line 18 on page 162.
Earl Howe (Con)
My Lords, in moving Amendment 95, I will speak also to Amendments 97, 287 and 293, which address recommendations in the report of your Lordships’ Delegated Powers and Regulatory Reform Committee on community land auctions—CLAs. I declare my interest as a landowner.
These procedural amendments will change the power of direction in Clause 133(1)(a), which allows the Secretary of State to direct that a local planning authority preparing a local plan may put in place a CLA arrangement. We are changing this, so that local planning authorities wishing to pilot a CLA arrangement should instead be designated by CLA regulations. These regulations will be subject to the negative resolution procedure to allow for an appropriate level of parliamentary scrutiny of the selection of local planning authorities to participate in community land auction arrangements. We agree with the argument put forward by the DPRRC that the negative resolution procedure is more appropriate than the affirmative, because it will not lead to the delay of the implementation of CLA arrangements.
The policy intent of these amendments is to allow for the appropriate level of parliamentary scrutiny over the selection of prospective piloting authorities. Any potential piloting authorities will need to actively volunteer to participate in CLA arrangements; they will not be forced to do so. These amendments remove any reference to a power for the DLUHC Secretary of State to direct in Part 5, and make associated changes to Clause 231 to ensure that the negative resolution procedure will apply to the new regulation-making power in Clause 133(1). I beg to move.
Lord Young of Cookham (Con)
My Lords, I will speak to Amendments 96 and 98 in my name and that of my noble friend Lord Lansley.
In answering a question last week, the Minister, my noble friend Lady Scott, said that the levelling-up Bill was a large one; she gave that as a reason for dropping the repeal of the Vagrancy Act. My amendment directly addresses that concern by deleting eight pages from the Bill: those introducing the untested concept of community land auctions, parachuted into the Bill at a late stage in the other place, hot from the bubbling vat of a think tank, without the normal process of cooling and maturing.
I say again how grateful I am to Ministers for their patience in discussions on CLAs and for the very comprehensive six-page letter received yesterday, addressing some of the concerns that I have spoken about.
One would have thought that a novel concept such as this one would have been subjected to some consultation before it appeared in the Bill: first, with those who have to operate it—namely, the planning authorities—and, secondly, with those who represent the landowners, who have expressed deep reservations about the proposal. So we were surprised to hear the Minister say, in winding up the debate in Committee:
“We will consult on community land auctions shortly”.—[Official Report, 18/5/23; col. 430.]
Over the weekend, I was reading the guidance issued in April last year for civil servants who are charged with developing policies such as this one. It says:
“Engaging with stakeholders as soon as possible gives them the opportunity to understand what’s being asked of the service team and why. It’s also a chance to build trust and understanding of each other’s needs and ways of working and lets them plan their time and involvement with the project”.
Clearly, that engagement with the stakeholders simply has not happened here. I am not blaming the civil servants; Ministers clearly insisted on this clause going in. The guidance then adds a warning to civil servants to
“think about what your users need, not what government thinks they want”.
Earl Howe (Con)
My Lords, I first thank noble Lords who have spoken on this group of amendments, which understandably have given rise to a number of questions. I shall do my best to address the various doubts and reservations that have been expressed, particularly those of my noble friends Lord Lansley and Lord Young of Cookham. As a general comment, however, I accept and acknowledge that there is uncertainty about the impact of the land auctions approach. That is why we are proposing a cautious power to explore the approach through time-limited pilots, with only a small number of local planning authorities that volunteer to do so participating. Only local planning authorities that volunteer to participate in the pilot will do so; if no local planning authorities volunteer, then the pilot will not happen.
As regards my noble friend’s lament that consultation has not yet taken place, he might have a point if we were proposing something compulsory for local authorities. We are not; we are proposing pilots that will be completely voluntary. That point is relevant also to my noble friend’s doubts about the capacity of local planning authorities to operate and handle a CLA. Local authorities that do not feel they are resourced to run a CLA will not have to do so.
I hope that we are united across the House in believing that it is important that the land value uplift associated with the allocation of land can be captured and put to good use for the benefit of communities. Notwithstanding the expressions of doom and scepticism from my noble friends, I am firmly of the view that community land auctions are a promising approach to doing just that. CLAs are designed as a process of price discovery that will incentivise landowners not to overprice the land that they are willing to sell.
This incentive should, we believe, have the effect of bearing down on land prices, which, in turn, should create greater scope for developer contributions and hence better value for local communities. The additional benefit to a local planning authority is certainty about the amount of land value uplift, rather than their having to make assumptions about values as they typically do at present. Certainty offered by CLA arrangements should make it easier for a local planning authority to set developer contributions, and easier for them to control housing supply. Therefore, removing these clauses from the Bill would mean losing out on an opportunity to test CLA arrangements as a potential new solution to the shortcomings of the current system.
The key questions posed by my noble friend Lord Young can, I think, be summarised as: what is to prevent a local planning authority giving undue preferential treatment to land in which they have a financial interest, either when drafting their local plan or when granting planning consents, and what transparency will there be around the process? I shall try to reassure my noble friend on those two issues.
First, I wholeheartedly agree that we cannot shift into a system in which planning permissions can, in effect, be bought and sold. That is why we are seeking to fully integrate community land auctions into the local plan-making process. There will be transparency, as the local plan will be prepared in consultation with the local community, with the proposed land allocations in the draft plan consulted on and independently examined in public, in accordance with the proposed new plan-making process.
As I have said previously, local planning authorities will need to consider many factors in addition to financial benefits when deciding to allocate land in their local plan. How, and the extent to which, financial considerations may be taken into account will be set out in CLA regulations. Moreover, once the local plan is adopted and sites are allocated, planning permission must still be sought in the usual way.
In the current system, local planning authorities already consider whether a site can viably achieve compliance with emerging policies when allocating land. Therefore, it is not unusual for local planning authorities to have to assess planning applications on land that they have allocated and from which they expect to secure value in the form of developer contributions to mitigate the impacts of new development. It is also not unusual for local planning authorities to consider planning applications on land in which they have an interest or have previously held an interest. Therefore, while it is true to say that community land auctions are a novel and innovative approach, parallels exist within the current system.
We recognise there should be limits on how local planning authorities can use the receipts from community land auctions. We have set out controls on spending that broadly mirror those for the infrastructure levy, and we will set out more detail on what CLA receipts can be spent on in regulations.
We also recognise the importance of both public scrutiny and evaluation to ensure that we fully understand the impacts of the approach. For this reason, the powers are time-limited, expiring 10 years after the regulations are first made.
In summary, I hope that I have provided reassurance—
Lord Lansley (Con)
I am sorry to interrupt my noble friend. He quite properly declared his interest as a landowner, but I ask him to think about this from the landowner’s point of view. In my experience around Cambridge, many of the most important sites are in the ownership of colleges and large family holdings. These would not make them available to be allocated in the local plan if, as a consequence, they would be subject to a CLA option and would lose control of the development, which is necessarily the result of the auction process. They would simply hold off. We will get less development as a result.
Earl Howe (Con)
I entirely take that point, which is why I spoke of a small number of local authorities that we expect to take up the option of a CLA. I am absolutely seized of the point that my noble friend has made. This will not be suitable in a number of areas around the country; he has given a good example from his own area.
Having said that, I hope I have assured noble Lords that existing legislation, and supporting policy and guidance, will mean that there are numerous safeguards to help ensure that community land auctions do not compromise the integrity of the planning system. It means that, while financial benefits can be taken into account in a CLA arrangement, there remains in place a host of measures to ensure well-planned development occurs.
As I said earlier, if we were to accept the amendments tabled by my noble friends Lord Young and Lord Lansley, we would lose the ability to test the merits of piloting community land auctions, which I believe would be a great pity, although I come back to what the noble Baroness, Lady Pinnock, rightly said: time will tell. For those reasons, I hope my noble friends will not feel the need to move their Amendments 96 and 98 when they are reached.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment removes the power of the Secretary of State to direct that a local planning authority may put in place a community land auction arrangement and replaces it with a power to make CLA regulations providing that.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment provides that the power to make regulations specifying environmental protection outcomes may be exercised by “an appropriate authority”.
Baroness Pinnock (LD)
My Lords, this is an important set of amendments from the noble Baroness, Lady Hayman of Ullock. They seek assurances from the Government that the replacement for the existing environmental tests for development—environmental outcomes reports—will be as robust as the ones they will replace.
The noble Baroness, Lady Hayman of Ullock, made a powerful case for a non-regression clause with her Amendment 106. Recently, there has been a lot of debate about this and pressure from those who want to point the finger of responsibility at the planning system for failing to produce the right number and quality of homes that are desperately needed in this country. When they do so, they point out the additional responsibilities of developers to adhere to environmental responsibilities and regulations, which are causing the difficulties they express. Of course, it is never as easy as that.
It seems to me that, after many years, as the noble Baroness, Lady Young, said, we have a much better balance now between development and protection of the environment in which developments are set. There are responsibilities that developers have to take up in order to make sure that they construct and do not destroy; to make sure that they create communities that sit well in their environment; and to make sure that nature and the environment are looked after for existing and future generations. So the noble Baroness, Lady Hayman, has made important points here; I hope that the Minister will be able to respond positively to them, because they are important. I guess that they will be raised again later on in our debates on Report.
Baroness Scott of Bybrook (Con)
My Lords, Amendments 100 and 101 in the name of the noble Baroness, Lady Hayman of Ullock, would require that all regulations made under Part 6 specify environmental outcomes, whether or not they actually relate to the outcomes themselves. This would place a significant burden on subsequent regulations and would require outcomes across every process element, even where not relevant—for example, on regulations related to enforcement, exemptions and guidance.
We recognise that framing will be critical and recently carried out a consultation on how we can translate the Government’s ambitions into deliverable outcomes, which is surely the key consideration here. The Government have also legislated to ensure additional consultations on future outcomes, as well as adopting the affirmative procedure in Parliament on the associated regulations.
Regarding Amendment 101, the Government have been careful to ensure that the new system is capable of capturing all the current elements of the environmental assessment process. This allows the Secretary of State to consider health matters such as air pollution when setting outcomes. Impacts on human health are covered by “protection of people” in Clause 143(2)(b). When developing secondary legislation, we will consult with stakeholders to ensure that health-related commitments are sufficiently captured.
On Amendment 106, the drafting of Clause 147 mirrors the EU-UK Trade and Cooperation Agreement to ensure that, when bringing forward reforms, we live up to our commitment to non-regression. As well as departing from the existing drafting, Amendment 106 would create a rigid approach to non-regression. Removing “overall” from levels of environmental protection would remove the ability to look at the effect of reforms as a whole. When read alongside the commitment to international obligations and expansive duties to consult, we feel that the non-regression clause strikes the right balance to ensure EORs can be an effective tool in managing the environment.
Let me respond to all the noble Baronesses who have spoken by making it clear that, in creating a new system of environmental assessment, it is essential that the standards are kept high. The Government are committed to improving what exists and ensuring that we can deliver on the challenges we face in the 21st century. Focusing on environmental outcomes will allow the Government to set ambitions for plans and developments that build on the Environment Act and other environmental commitments. The legislation is clear that the Government cannot use these powers to reduce the level of environmental protection, and it includes a clause setting out this commitment to non-regression.
On Amendment 107, I have no reservation in saying that the UN sustainable development goals are crucial ambitions. The UK is committed to achieving them by 2030, as affirmed in the international development strategy and integrated review. The expansive nature of these goals is such that it is not possible for the planning and consenting frameworks within which EORs operate to support them all. To require the EOR regime to do so would significantly expand the scope of the assessment beyond the existing legal frameworks of the environmental impact assessments and strategic environmental assessments.
This amendment would exacerbate the biggest issue with the current process, which is a mandatory list of topics that are required to be considered for all assessments, whether relevant or not. Listing matters to be considered in this way has resulted in overly long, complex and inaccessible documents, full of unnecessary material in case an omission invites legal challenge. It would thwart our efforts to make the process more effective, meaningful and manageable.
Environmental assessment was established as a tool to ensure that the environmental impacts of a development were not overlooked in favour of the social and economic priorities that drive development activity. A requirement to support the delivery of all goals would divert attention away from the EOR’s core purpose of providing an additional level of scrutiny of the effects of the development activity on the environment.
I hope this provides the reassurances necessary for the noble Baroness, Lady Hayman of Ullock, to withdraw her Amendment 100 and for the other amendments not to be moved when they are reached.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for her response. I have to say that I still have concerns about non-regression. If it works for the Environment Act, I do not understand why it would not work here. Having said that, I beg leave to withdraw my amendment.
Baroness Pinnock (LD)
My Lords, my noble friend Lady Bakewell of Hardington Mandeville is unfortunately unable to attend today, as she is not well. I will say a few words on her behalf.
First, I endorse entirely what has already been said about the environmental importance of chalk streams. I think it was David Attenborough who described them as one of the rarest habitats on earth. If David Attenborough says that, we must listen and listen carefully.
Secondly, I want to say something about pollution and about water extraction. The Environment Agency has responsibility for giving permission to water companies for the level of extraction, be it from rivers or aquifers. Indeed, there are aquifers in Yorkshire—not in my part, but in the East Riding—which Yorkshire Water extracts from. What I do know is that aquifers take a long time to refill after periods of extraction. I look to the Minister to respond on water extraction from aquifers. The amount of water taken from aquifers obviously then impacts on the flow in chalk streams, which is essential for their protection.
What I want to say about pollution from sewage overflow discharge is this. About 150 years ago there was a Conservative Prime Minister in this country who had a policy of sewage. That is exactly what this country needs now. A Conservative Government run this country, so perhaps they can adopt Disraeli’s policy of sewage. It would be a bit late, but it would not be before time if they did.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
I am very grateful to the noble Baroness and others who have spoken. The noble Baroness should read our Plan for Water, which does exactly what she said. I refer noble Lords to my entry in the register.
I turn to Amendment 102, in the name of my noble friend Lord Trenchard. I defer to no one in the verbal arms race that usually takes place in these debates about who can be the greatest supporter of chalk streams. I am passionate about them, and I want to see our chalk streams, which are one of the most valuable ecosystems in these islands, restored to pristine health. I note the passion from across the House on the need to protect these habitats further.
The Government recognise that chalk streams in England are internationally important and unique, and in many cases in poor health. We are committed to restoring England’s chalk streams. We have recently reaffirmed this commitment in our Plan for Water, which I just referred to, which recognises chalk streams as having special natural heritage.
Baroness Scott of Bybrook
Member’s explanatory statement
This amendment is consequential to the amendment to Clause 143 at line 36 on page 171 in the Minister’s name.
Baroness Scott of Bybrook
Member’s explanatory statement
This amendment provides that the requirement to assess the impact of EOR regulations on the overall level of environmental protection before making regulations applies to “an appropriate authority”.
Baroness Scott of Bybrook
Member’s explanatory statement
This amendment provides that the requirement for arrangements to exist under which the public will be informed of any proposed relevant consent or plan are sufficient to enable adequate public engagement applies to “an appropriate authority”.
Baroness Scott of Bybrook
Member’s explanatory statement
This amendment provides that the Secretary of State may make EOR regulations which contain provision within Scottish devolved competence without consulting the Scottish Ministers where the provision is merely incidental to, or consequential upon, provision that is outside that devolved competence.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment requires the Secretary of State to obtain the consent of the Welsh Ministers before making EOR regulations which contain provision within Welsh devolved legislative competence.
Baroness Scott of Bybrook
“(3A) The Secretary of State may only make EOR regulations which contain provision that could be made by the Welsh Ministers or that confers a function on, or modifies or removes a function of, the Welsh Ministers or a devolved Welsh authority after consulting the Welsh Ministers, unless—(a) that provision is contained in regulations which require the consent of the Welsh Ministers by virtue of subsection (3), or(b) that provision is merely incidental to, or consequential on, provision that would be outside Welsh devolved legislative competence.(3B) “Devolved Welsh authority” has the same meaning as in the Government of Wales Act 2006 (see section 157A of that Act).”Member's explanatory statement
This amendment requires the Secretary of State to consult the Welsh Ministers before making EOR regulations which contain provision that could be made by the Welsh Ministers or that confers a function on, or modifies or removes a function of, the Welsh Ministers or a devolved Welsh authority except in certain circumstances.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment requires the Secretary of State to obtain the consent of a Northern Ireland department before making EOR regulations which contain provision within Northern Ireland devolved legislative competence.
Baroness Scott of Bybrook
“(5A) The Secretary of State may only make EOR regulations which contain provision that could be made by a Northern Ireland department or that confers a function on, or modifies or removes a function of, a Northern Ireland department after consulting the relevant Northern Ireland department, unless—(a) that provision is contained in regulations which require the consent of the relevant Northern Ireland department by virtue of subsection (5), or(b) that provision is merely incidental to, or consequential on, provision that would be outside Northern Ireland devolved legislative competence.(5B) The “relevant Northern Ireland department” is such Northern Ireland department as the Secretary of State considers appropriate having regard to the provision which is to be contained in the regulations concerned.”Member's explanatory statement
This amendment requires the Secretary of State to consult a Northern Ireland department before making EOR regulations which contain provision that could be made by a Northern Ireland department or that confers a function on, or modifies or removes a function of, a Northern Ireland department except in certain circumstances, and provides a definition of the relevant Northern Ireland department.
Baroness Scott of Bybrook
“EOR regulations: devolved authoritiesSchedule (Regulations under Chapter 1 of Part 3 or Part 6: restrictions on devolved authorities) contains restrictions on the exercise of the powers under this Part by devolved authorities.” Member's explanatory statement
This amendment inserts a new Clause which introduces the Schedule to be inserted after Schedule 12 in the Minister’s name which contains restrictions on the exercise of the powers under this Part by devolved authorities.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment provides that the requirement to consult the public before making certain EOR regulations applies to “an appropriate authority”.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment is consequential on the amendment made to Clause 153 at line 4 on page 180 in the Minister’s name.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment limits the power under subsection (2)(a) of Clause 154 to “relevant existing environmental assessment legislation”.
Baroness Hayman of Ullock (Lab)
My Lords, I just want to say how much we support the amendment tabled in the name of the noble Lord, Lord Randall, and so ably introduced by the noble Baroness, Lady Willis of Summertown. We have heard that it would deliver a new focus on nature by implementing the key recommendations from the Glover review of protected landscapes, all of which were previously agreed by the Government. This is an opportunity to move forward on them and I really hope that the Minister can give us some hope that we are going to achieve some of that.
Lord Benyon (Con)
My Lords, I thank the noble Baroness, Lady Willis, for moving my noble friend Lord Randall’s Amendment 139. The Government recognise how precious our protected landscapes are, and the Environment Act’s recently commenced biodiversity duty will play a vital role in further improving their ability to deliver for nature. The noble Baroness is absolutely right that there is no point in talking about 30 by 30 as if it was a line on a map; it has to be a quality that we are seeking to protect. We are determined that national parks and AONBs should play their part in really protecting nature and the environment. I will come on to talk about socioeconomic activities when I respond to my noble friend Lady McIntosh’s point.
However, the current statutory purposes are well established. Adding five purposes would cause confusion, particularly when it comes to prioritisation. Instead, we will publish an outcomes framework to define the expected contribution of protected landscapes to national targets later this year. This framework will be embedded within management plans to ensure they reflect the Government’s priorities—the priorities enshrined in the 25- year environment plan and in our environmental improvement plan, as part of the Environment Act. We believe this will deliver the desired outcomes in a less disruptive and more agile way than through legislation. We have also taken on board my noble friend Lord Blencathra’s excellent suggestion that new guidance would clarify interpretation of legislation. The Government will publish guidance this year on management plans and, next year, on the duties on public bodies.
I hope that is an important indication to your Lordships that we are determined to ensure that we achieve the kind of requirements for the purposes that these places were designated. When the 1949 Act was passed, no one was talking about climate change or about a crisis of species decline—but we are, and we want these landscapes to contribute to the response that this Government so passionately want to achieve, which is a reversal of the decline of species by 2030, with all those Lawton principles of bigger, better and more joined up absolutely functioning at the heart of it. I hope I have said enough to enable the noble Baroness, Lady Willis, to withdraw the amendment in the name of my noble friend Lord Randall.
Baroness Scott of Bybrook
140: Clause 157, page 182, line 7, after “means” insert “the legislation listed in Schedule (Existing environmental assessment legislation)”
Member’s explanatory statement
This amendment introduces the Schedule inserted after Schedule 12 in the Minister’s name which lists the existing environmental assessment legislation for the purposes of the definition.
141: Clause 157, page 182, line 8, leave out from beginning to the end of line 3 on page 183
Member's explanatory statement
This amendment leaves out the list of existing environmental assessment legislation because the detail of that definition is being moved into the Schedule inserted after Schedule 12 in the Minister’s name.
142: Clause 157, page 183, line 3, at end insert—
“(1A) “Relevant existing environmental assessment legislation” means—
(a) in relation to EOR regulations made by the Secretary of State acting alone or jointly with one or more devolved authorities, the legislation listed in Schedule (Existing environmental assessment legislation);
(b) in relation to EOR regulations made by the Scottish Ministers acting alone, the legislation listed in Part 2 of that Schedule;
(c) in relation to EOR regulations made by the Welsh Ministers acting alone, the legislation listed in Part 3 of that Schedule;
(d) in relation to EOR regulations made by a Northern Ireland department acting alone, the legislation listed in Part 4 of that Schedule.”
Member's explanatory statement
This amendment inserts a new definition of “relevant existing environmental assessment legislation”.
143: Clause 157, page 183, line 4, at end insert—
““appropriate authority” means—
(a) the Secretary of State,
(b) a devolved authority, or
(c) the Secretary of State acting jointly with one or more devolved authorities;”
Member's explanatory statement
This amendment provides the definition for Part 6 of “an appropriate authority” as the Secretary of State, a devolved authority or the Secretary of State acting jointly with one or more devolved authorities.
144: Clause 157, page 183, line 7, at end insert—
““devolved authority” means—
(a) the Scottish Ministers,
(b) the Welsh Ministers, or
(c) a Northern Ireland department;””
Member's explanatory statement
This amendment provides the definition of a “devolved authority” for Part 6.
145: Clause 157, page 183, line 27, at end insert—
““relevant existing environmental assessment legislation” has the meaning given by subsection (1A);”
Member’s explanatory statement
This amendment is consequential on the amendment inserting a new definition of “relevant existing environmental assessment legislation” into Clause 157 in the Minister’s name.