Wednesday 13th September 2023
(1 year, 3 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-VII(a) Amendment for Report (Supplementary to the Seventh Marshalled List) - (13 Sep 2023)
18:49 - Division on Amendment 247YY - Ayes: 156 / Noes: 203 - Amendment 247YY disagreed.
19:03 - Division on Amendment 247YYA - Ayes: 161 / Noes: 192 - Amendment 247YYA disagreed.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the noble Lord, Lord Lexden, for introducing this group and the amendment in the name of the noble Lord, Lord Northbrook, as well as for drawing our attention to the importance of standards. Clearly, most of the debate has been around the amendments in the name of the noble Lord, Lord Moylan. As we are on Report, I shall be brief and make just two points in response to the noble Lord’s amendments.
First, I point out that Sadiq Khan has explicitly ruled out the introduction of pay-per-mile charging while he is Mayor of London. Secondly, on Amendment 282N, which seems to be the core amendment within the four amendments introduced, our concern is that this includes a loophole for councils to opt out of such schemes. Introducing that loophole undermines the national objective of improving air quality. We think that it risks increasing public confusion and is not in the interests of preventive health and improving air quality.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 242 in the name of the noble Lord, Lord Northbrook, introduced by my noble friend Lord Lexden, would require the Government to make all standards that relate to all planning Acts or local authority planning policy, online and free of charge.
As I think I said in Committee, our national standards body, the British Standards Institution or BSI, publishes around 3,000 standards annually. These standards are a product of over 1,000 expert committees. BSI is independent of government and governed by the rights and duties included in its royal charter. This includes the obligation to set up, sell and distribute standards of quality for goods, services and management systems. About 20% of the standards produced are to support the regulatory framework. This will include a minority of standards made to support planning legislation and local authority planning policy. To ensure the integrity of the system and to support the effective running of the standards-making process, the funding model relies on BSI charging customers for access to its standards. As a non-profit distributing body, BSI reinvests this income from sales in the standards development programme.
My noble friend Lord Lexden asked what the difference is between a regulation and a standard. A regulation provides minimum legal requirements, is written by government and is laid before Parliament. A standard is expert-led and derives its legitimacy through consensus and public consultation. A standard, however, can help demonstrate compliance with legislation. My noble friend also brought up the issue of access in Northern Ireland’s libraries. Interestingly enough, access to British standards is available free in public and university libraries across this country as well, including the British Library, Herefordshire County libraries and the National Library of Scotland. I hope that this provides sufficient reason for my noble friend Lord Lexden, on behalf of the noble Lord, Lord Northbrook, to withdraw the amendment.
I thank my noble friend Lord Moylan for tabling Amendments 282N, 302A, 315ZA and 317, to which I have added my name. He speaks with his characteristic eloquence about the challenges of introducing road user charging schemes in the capital. My noble friend’s experience in these matters is worth repeating. He is a former deputy leader of Kensington and Chelsea Council, a former deputy chairman of Transport for London and a former chairman of London Councils’ city-wide transport and environment committee. My noble friend therefore speaks with unrivalled experience and authority on matters of London’s governance.
My noble friend is entirely correct in his analysis of the differences between the mayoral model followed in London and the combined authority model followed elsewhere in England. He is right to draw attention to the resulting friction that can arise between London borough councils and the mayoralty in London. Regrettably, we have seen a clear display of this during the recent debates on the expansion of the ultra-low emission zones.
As the Government, through this Bill, look to widen and deepen the devolved powers of leaders outside the capital, it is right that we also take stock of how London’s devolution settlement is working in practice. To this end, the Government have committed, through their new English devolution accountability framework, published earlier this year, to review
“how current scrutiny and accountability arrangements in London are operating in practice”,
including
“how the Greater London Authority works and liaises with the London boroughs”.
In addition, the Levelling Up Advisory Council has been asked to examine the strengths and challenges of the capital’s devolution settlement, and a report on that is expected next year. In the meantime, my noble friend’s new clause on road user charging schemes in London provides a targeted, proportionate and wholly sensible correction to the current uneven distribution of power and decision-making between borough councils and the Greater London Authority when introducing ULEZ-style road user charging schemes across the capital. The amendment is entirely in keeping with the wider aims of the Bill to “empower local leaders” and to “enhance local democracy”. As such, I can confirm that, should my noble friend Lord Moylan wish to test the opinion of your Lordships’ House on this matter, he would have the Government’s support.
Baroness Taylor of Stevenage (Lab)
My Lords, the powers introduced by this section amend and clarify powers and procedures for using compulsory purchase and have been extensively consulted on—unlike some other parts of the Bill. The LGA’s view is that the introduction of measures that would genuinely make the CPO process more efficient for councils is an encouraging step, as it has previously lobbied on the need to reduce the time taken to use the CPO, and it also believes that these changes will make the valuation of change in this context closer to a normal market transaction.
In fact, the LGA view is that the Bill could have gone further. It would also like to see the ability to tackle sites which have had planning permission for a long time but which have not been built out through stronger compulsory purchase powers, and the removal of the requirement for permission from the Secretary of State to proceed with a CPO, which would expedite the process for local authorities. Of course, the Secretary of State could always retain the right to call in in circumstances where it would be necessary to do so.
I listened carefully to the noble Lord, Lord Carrington, and the noble Earl, Lord Lytton, and I am sympathetic to the specific issues they raised, particularly the issue about prompt payment for purchases of land. Perhaps I have had an unusual experience of the CPO process but the conditions are already stringent, both in setting out the process for a site qualifying for a CPO and in the requirement for valuation of that site. Therefore, while I appreciate the thinking behind the amendment, it seems that there is already guidance in place—indeed, the amendment refers to it. I look forward to the Minister’s response.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 246, tabled by the noble Lord, Lord Carrington, would place a requirement on the Government to publish by regulations a new duty of care for all acquiring authorities undertaking compulsory purchase. The proposed duty of care would involve obligations on acquiring authorities to acquire only land necessary for their schemes and to mitigate the impacts of their schemes, as well as to pay compensation to landowners at the date of entry or date of vesting and ensure that all communication with claimants is conducted in accordance with government guidance. I reassure noble Lords that the Government understand the concerns behind this amendment. However, the Government consider the proposed duty of care to be unnecessary for the following reasons.
First, whatever the underlying scheme, a guiding principle of compulsory purchase is that acquiring authorities should include within the boundary of a CPO only land which is required to facilitate the scheme. It is for acquiring authorities to demonstrate that there is justification and a compelling case to support the inclusion of land within a CPO boundary. Where they cannot, a CPO is likely to fail.
Secondly, another principle is that the use of a CPO is lawful only providing that acquiring authorities compensate landowners for the loss of their interests, whether the land is acquired following notice to treat or is vested in the acquiring authority. Where an acquiring authority takes possession of land before compensation has been agreed, it is obliged to make an advance payment of compensation to the landowner if requested.
Baroness Willis of Summertown (CB)
My Lords, at an earlier stage of the Bill, I made the case, with others, for amending Clause 158, which concerns the statutory requirement for water companies to upgrade sewage plants to meet new nutrient standards in the areas worst affected by pollution. We welcomed this, but although it was seen as a good step forwards for improving water quality, frustratingly, it specified only that such upgrades should take place at the sewage disposal works themselves, usually meaning traditional engineering systems and solutions, which in themselves relied on concrete materials. Amendment 247, tabled in my name and with the support of the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, was therefore designed to enable effective use of restored habitats, known in this context as nature-based solutions, by water companies to also meet those standards.
As we pointed out in Committee, those nature-based alternatives can be a really effective and very cheap approach to soaking up nutrient loads and reducing the pollution reaching rivers, as well as providing excellent habitats for biodiversity. Our amendment also had strong support from water companies and Ofwat, but in Committee, the Government’s argument against it was the suggestion that it could somehow let water companies off the hook by allowing them to use such nature-based measures to fudge the delivery of their upgrades. We have therefore brought back this tweaked amendment, in which we have added an explicit requirement for water companies to secure agreement for compliance and investment plans from Ofwat and the Environment Agency before commencing their updates—so we are putting a fail safe in there. We have also included in the amendment the ability for the Environment Agency to impose monetary penalties on water companies for failing to deliver on the compliance and investment plans.
Over the summer, concessions in this area were tabled by the Government, which I really welcome. Those amendments are really positive in principle. However—this is a very big “however”—I fear that Amendment 247 may become very insignificant for the environment if the other government amendments recently introduced into this group are passed. I will therefore briefly speak to those as well. As I am a scientist, I will address the amendments from a scientific perspective rather than addressing their constitutional and legal aspects. In particular, I want to focus on Amendment 247YYA, which amends the habitats regulations to remove controls on nutrient loads in rivers for those that are associated with housing developments.
The amendments are based on the premise that the extra nutrient loading in areas where the relevant houses will be built will be less than 1% of the loading of the existing housing stock. This is where a key piece of evidence is missing: what is the loading of the existing housing stock? The Home Builders Federation would like us to believe that houses contribute 5% of excess nutrient loads in rivers in England compared with 50% from agricultural activities, so it is all the problem of farmers and not of housebuilders.
I quote from the Home Builders Federation:
“It is estimated that all existing development, including residential, commercial and the rest of the built environment, contributes less than 5% towards the phosphate and nitrate loads in our rivers—meaning the occupants of any new homes built would make a negligible difference”.
But the evidence base is, very strangely, lacking: where does that 5% come from? Searching for it leads me to believe that the figure has been extrapolated from a 2014 Defra report, The Impact of Agriculture on the Water Environment: summary of evidence, which was used to inform the 25-year environment plan. The first thing to note is that this report has since been updated by Defra, and the most recent statistics stand as follows:
“Agriculture is the dominant source of nitrate in water (about 70% of total inputs), with sewage effluent a secondary contributor (25-30%)”—
not 5%.
I also looked at other data that could support this level of 5% from the built environment, so I did a search of academic studies that had been published in the peer-reviewed literature in the past three years in similar climatic regions across the world to look at the percentage source of pollution in river catchments that contain a mix of agriculture and urban development. I could not find a single example that suggested a value as low as 5% of the nutrients in rivers coming from housing. One found that, in a large catchment containing seven rivers, 14% of nutrients were from wastewater from residential buildings; in another, it was 33%, and 28% in another. All were significantly higher than the 5% that we have been told is the likely impact. For the UK, a recent assessment by Greenshank Environmental also indicates a far higher nutrient load in rivers from housing, closer to 36%. I therefore urge other noble Lords not to take this 5% figure too seriously.
Worse than this, if Amendment 247YYA goes through, we will never know the true value, since the amendment instructs planning authorities to assume no increase in pollution, prevents them requesting an assessment to investigate pollution further and even goes as far as to instruct authorities to ignore any evidence of potential adverse impacts; for example, as provided by scientific studies or even NGOs. It simply cannot be acceptable to amend one of our key environmental protections like this.
These amendments also fly in the face of the environment statement on the Bill, which says:
“The Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
That does not seem to be the case. The Government’s own adviser, and the chair of the Office for Environmental Protection, made this point in a letter to the Government last week.
In conclusion, I will not be supporting these later government amendments. I urge other noble Lords to do the same, not least because in this country we are already dealing with extremely polluted rivers. In February this year, the Environment Agency reported that only 14% of our rivers are classified as being in a good ecological status. It also stated that, without new interventions, this figure will drop to just 6% by 2027. I beg to move.
Baroness Scott of Bybrook (Con)
My Lords, with the leave of the House, and to assist noble Lords participating in this debate, I will speak to the government amendments in this group. I will of course address the amendments tabled by noble Lords and the wider debate in my closing remarks.
All the amendments in my name address the major issue of nutrient neutrality, which has effectively stalled or blocked completely housing development in affected areas. For procedural reasons, and agreed in the usual channels, I will treat the tailing amendments—Amendments 247YE and 247YX—as de-grouped.
This issue is hampering local economies, depriving communities of much needed housing and threatening to put the SME builders out of business. Nutrients entering our rivers is a real and serious problem, but the contribution made by new homes is very small compared with that from sources such as industry, agriculture and our existing housing stock. Government Amendments 247A to 247YW cover a range of improvements to our current approach to improving wastewater treatment. These amendments respond to comments and concerns of noble Lords in Committee about more nature-based and catchment-based approaches. I hope they will be welcomed.
I now turn to Amendment 247YYA, mentioned by the noble Baroness, Lady Willis of Summertown, which would require a competent authority to make a reasonable assumption for relevant developments that nutrients from that development will not adversely affect the integrity of the site. The assumption we are asking competent authorities to make is reasonable for two reasons. First, this assumption is limited to the development where the wastewater is treated by a wastewater treatment works or private treatment system regulated under the environmental permitting regulations. This means that nutrient loads in wastewater will remain strictly controlled through the environmental permitting regime, which places legally binding duties on water companies, and through the regulators of the water industry, which are subject to the requirements of the habitats regulations. Secondly, the mitigations that we are putting in place will ensure that there are no additional nutrient loads from residential development.
If we are to take these reasonable steps, we need to amend the habitats regulations in the way our amendments set out. This is a carefully targeted and specific change, aimed only at addressing a disproportionate application of the regulations since the Dutch nitrogen case in the European Court of Justice. Following the findings in this case, since March 2022 housing development in affected catchments has been stalled or blocked—even though new housing contributes such a small proportion of pollution.
In these areas, following the guidance that Natural England was required to issue, development may not be consented unless and until, case by case, house by house, mitigation is in place. This applies even though the additional pollution we are talking about—the additional nitrate and phosphate which remains in the water after domestic sewage is treated—will not get anywhere near the waterways unless the houses not only have planning permission but have been built and occupied.
New development is stalling at the point of planning permission, or even, in many cases, after permission has been granted. It is an absurd situation that is undermining local economies, costing jobs, threatening to put small developers out of business and, above all, leaving communities without the homes that they want and need.
This is not to say that the problem of nutrient pollution in our rivers is unimportant—it very much is—but developers and local planning authorities are bound up in a burdensome and expensive process that does nothing to give certainty to anyone, creating huge opportunity costs. In some catchment areas, hard work by Natural England, environmental groups and developers has started to allow some housing to be consented. However, having listened to the concerns of local communities, local authorities and housebuilders, it is clear that these schemes are moving too slowly, with no guarantee that demand can be met imminently.
Baroness Hayman of Ullock (Lab)
My Lords, I start by thanking the noble Baroness, Lady Willis of Summertown, for her introduction to this debate. It has been a very important debate with some excellent contributions, and I am sure that it has given many noble Lords on the opposite Benches food for thought. I will speak to my Amendment 247YYDA and will oppose certain government amendments in this group.
The current nutrient neutrality rules do not work, as we have heard from noble Lords today, but we do not think that the Government’s proposals work either. We certainly do not agree with the powers being introduced in government Amendment 247YY, or government Amendment 247YYA, which introduces new Schedule 13 and means abandoning legal protections for the nation’s most precious and sensitive habitats, on the premise that this is the only way to increase housing supply. As we have heard from noble Lords, this is completely wrong. It is entirely possible to balance the need for more homes with the need to protect nature. That is why have tabled Amendment 247YYDA, which would establish a process to consider alternative ways to reform nutrient neutrality regulations. Perhaps I can draw the attention of the noble Lords, Lord Best and Lord Moylan, to our proposals.
The amendment would launch a public consultation to consider the alternatives, allowing for an evidence-based approach that the Government’s new schedule completely lacks. Before I expand on how that alternative could be established, I want to explain why we will be opposing the introduction of the government amendments in this group.
Put simply, this change of policy means that developers will no longer need to mitigate harmful pollutants when building in the most environmentally sensitive areas. Noble Lords have made quite clear their concerns about this approach. We believe that the resulting increase in river pollution is a wholly unnecessary price to pay for building the homes that we are in short supply of. We also believe that the way the Government have introduced the amendments has been entirely inappropriate.
As we have heard from other noble Lords in this debate, the Bill has been passing through Parliament for more than 16 months, and yet this policy has been added only at the very last minute, during the final days of Report. It is accompanied, as we have heard, by excessive regulatory powers, which we will oppose, and which, as we have heard, noble Lords on the Delegated Powers Committee, have referred to as “open-ended”. I would not suggest that the word “proportionate”, which the Minister used, was the correct response. What is more, the committee noted that
“there appears to have been no public consultation or engagement with stakeholders prior to the publication of these measures”.
For a group of amendments which the Government claim could cost £230 million—other estimates suggest they would cost far more—no consultation or engagement is, frankly, astounding.
As the noble Duke, the Duke of Wellington, said, but which I think needs repeating, the Office for Environmental Protection has issued statutory advice to say that the measure
“would demonstrably reduce the level of environmental protection provided for in existing environmental law”—
in other words, a regression. We have already heard, and so the House will not need further reminding, that during consideration of the retained EU law Bill the Government repeatedly ruled out ever taking this step. On Monday 26 June, the noble Lord, Lord Callanan, told this House that
“the Government will not row back on our world-leading environmental protections”.—[Official Report, 26/6/23; col. 469.]
However, the Office for Environmental Protection says that this is exactly what is happening. We believe, therefore, that it is wholly inappropriate for this House to agree these amendments to the Bill.
Instead, I urge the Minister to consider the approach that we have outlined in Amendment 247YYDA, which would open up the possibility of nutrient neutrality reform on the basis of consultation and evidence, and through the principle of good law. This is an amendment which has benefited from the input of the Local Government Association, and, I am pleased to say, has the support of Wildlife and Countryside Link. As I mentioned earlier, it would allow for a public consultation on various proposals which have been suggested by other Members of this House and other organisations across the UK. While I will not delve into the various options now, noble Lords will note that proposed new subsection (2) outlines the key alternatives. I also draw attention to the fact that the amendment stipulates that the consultation would launch, be completed and laid before both Houses within three months. I see no reason why the Government cannot provide an evidence-based solution to this Parliament.
It is abundantly clear that there are far better ways to build the new homes we need than at the expense of our precious environment. I hope the Minister will accept our amendment, withdraw the government amendments, and agree that polluting our rivers is not a price we need to pay for sufficient housing supply. If not, as other noble Lords have indicated, we will oppose the government amendments.
Baroness Scott of Bybrook (Con)
My Lords, let me conclude this debate by responding to a number of points that have been made, starting with the noble Duke, the Duke of Wellington. I shall not name all noble lords, if your Lordships do not mind, in each response, but those who asked the questions will know who they are, and questions were asked by a number of noble Lords.
I turn first to the question on the views of the OEP. As my right honourable friend the Environment Secretary has set out very clearly in her response to the Office for Environmental Protection, we do not accept that this will lead to regression in environmental outcomes. It is the Government’s judgment that it will not. The reform package will improve the conditions of these habitat sites. The obligations on water companies to upgrade wastewater treatment works in designated catchment areas by 1 April 2030 will far outweigh the nutrients expected from the new housing developments, by putting in place wider upgrades for the long term. These upgrades will benefit existing houses, not just new homes, providing an effective approach to reducing existing wastewater nutrient pollution, not just forestalling the possible future pollution from development. On top of that, we are doubling investment in Natural England’s nutrient mitigation scheme to £280 million, which will be sufficient to offset the very small amount of additional nutrient discharge attributable to the 100,000 homes between now and 2030.
Staying on the OEP, my noble friend Lady McIntosh suggested that the Government broke the law on sewage. We always welcome scrutiny from the OEP, and we are co-operating with it fully to support its work in many areas. The OEP has not concluded that the Government broke the law on combined sewer overflows; it issued an information notice requesting a further response from Defra, Ofwat and the Environment Agency, and is continuing to investigate.
I move on to another issue that the noble Duke, the Duke of Wellington, brought up, as did many other noble Lords: how can we justify asking local authorities to effectively ignore the facts? I dealt with this in my opening speech, but I am going to repeat it.
The assumption we are asking competent authorities to make is reasonable for two reasons. First, this assumption is limited to developments where the wastewater is treated by a wastewater treatment works or a private treatment system regulated under the environmental permitting regulations. This means that nutrients from wastewater will remain subject to the strict legal duties that are binding on water companies and others who operate wastewater treatment systems. These duties are becoming stricter in many affected catchments, thanks to the wastewater treatment work upgrades mandated through the Bill. As I said before, the Government estimate that this will lead to a 69% reduction in phosphorus loads and around a 57% reduction in nitrogen loads in total from wastewater treatment works across all affected catchments, significantly reducing nutrient pollution at source in a principled manner.
Secondly, a package of measures we are putting in place will ensure that we more than offset the additional nutrient flows from new housing. This includes the significant additional investments we are putting into Natural England’s nutrient mitigation scheme. Local authorities will be able to object to planning applications on the basis of nutrient pollution; it is mandatory to consider it. Local planning authorities will still have to consider the impact from nutrient pollution as a material planning consideration, as the amendments made no change to the wider operation of the planning system.
Planning decision-makers will continue to have regard to the national planning policy and material planning considerations, and the Government are clear that the focus of planning decisions should always be on whether the proposed development is an acceptable use of land, rather than the control of processes, where these are subject to separate pollution control regimes. Nutrient pollution from wastewater treatment works is controlled under environmental permits, and planning decisions should assume that these regimes will operate effectively.
Another issue brought up by a number of noble Lords is that the developer should pay. The Government agree. It is essential that housebuilders contribute fairly, and we all agree with the principle that the polluter should pay. We are working with the HBF to structure a fair and appropriate contribution system. My officials are in active discussions with it about the design of these schemes, including considering how they are delivered.
“(1A) In carrying out the duty under subsection (1), a sewerage undertaker must consider whether nature-based solutions, technologies and facilities relating to sewerage and water could be used to meet the standard.”Member's explanatory statement
This amendment requires sewerage undertakers to consider using nature-based solutions in the course of meeting the nutrient pollution standard.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment is consequential on the amendment that substitutes Schedule 13.
Baroness Scott of Bybrook (Con)
My Lords, I beg to move this de-grouped amendment.
Baroness Scott of Bybrook
“(c) all catchment permitting areas.”Member's explanatory statement
This amendment is consequential on the second amendment in my name to clause 158 at page 188, line 22.
Member's explanatory statement
This amendment, which is consequential on the amendment that substitutes Schedule 13, revises the description of the provision made by Schedule 13.
Baroness Scott of Bybrook (Con)
My Lords, I beg to move this de-grouped amendment.
Baroness Scott of Bybrook
“Regulations: nutrients in water in England(1) The Secretary of State may by regulations make provision about the operation of any relevant enactment in connection with the effect of nutrients in water that could affect a habitats site connected to a nutrient affected catchment area.(2) The regulations may make any provision which the Secretary of State considers appropriate, including provision that—(a) disapplies or modifies, in relation to a relevant enactment, any effect of nutrients in water;(b) confers, removes or otherwise modifies a function (including a function involving the exercise of a discretion) under or by virtue of a relevant enactment;(c) affects how such a function is exercised, including the extent to which (if any) the effect of nutrients in water is taken, or to be taken, into account; (d) provides for an obligation under or by virtue of a relevant enactment to be treated as discharged (in circumstances where, but for the provision, the obligation may not have been discharged);(e) amends, repeals, revokes or otherwise modifies any provision of a relevant enactment.(3) A “relevant enactment” means—(a) an enactment comprised in or made under an Act of Parliament, or(b) retained direct EU legislation,so far as it relates to the environment, planning or development in England.(4) The enactments referred to in subsection (3)(a) do not include—(a) this section;(b) Part 6 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012).(5) Neither regulation 9 nor 16A of the Conservation of Habitats and Species Regulations 2017 applies in relation to this section.(6) In subsection (1) “habitats site” and “nutrient affected catchment area” have the meaning given in section 96J(2) of the Water Industry Act 1991; and a habitats site is connected to a nutrient affected catchment area if water released into the catchment area would drain into the site.(7) In this section “nutrients” means nutrients of any kind.(8) The power under subsection (1) may not be exercised after 31 March 2030.”Member's explanatory statement
This amendment confers a power on the Secretary of State to make regulations affecting the operation, in connection with the effect of nutrients in water, of enactments concerned with the environment, planning or development in England.
Baroness Scott of Bybrook
“Schedule 13Amendments of the Conservation of Habitats and Species Regulations 2017: effect of nutrient pollution in waste waterPart 1Introductory1 The Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) are amended as set out in this Schedule.Part 2Planning2 Chapter 2 of Part 6 (assessment of plans and projects: planning) is amended as follows.3 In regulation 70 (grant of planning permission), after paragraph (4) insert—“(5) See regulation 85A for provision about the effect of nutrient pollution in waste water.”4 In regulation 71 (planning permission: duty to review), after paragraph (9) insert—“(10) See regulation 85A for provision about the effect of nutrient pollution in waste water.”5 In regulation 77 (general development orders: approval of local planning authority), after paragraph (7) insert—“(8) See regulation 85B for provision about the effect of nutrient pollution in waste water.”6 In regulation 79 (special development orders), after paragraph (5) insert—“(6) See regulation 85A for provision about the effect of nutrient pollution in waste water.”7 In regulation 80 (local development orders), after paragraph (5) insert—“(6) See regulation 85A for provision about the effect of nutrient pollution in waste water.”8 In regulation 81 (neighbourhood development orders), after paragraph (5) insert—“(5A) See regulation 85A for provision about the effect of nutrient pollution in waste water.”9 In regulation 82 (simplified planning zones), after paragraph (6) insert—“(7) See regulation 85A for provision about the effect of nutrient pollution in waste water.”10 In regulation 83 (enterprise zones), after paragraph (6) insert— “(7) See regulation 85A for provision about the effect of nutrient pollution in waste water.”11 After regulation 85 insert—“Decisions where nutrient pollution in waste water is relevant: general(1) This regulation applies where—(a) a competent authority makes a relevant decision,(b) the potential development is development in England,(c) urban waste water from any potential development could affect a relevant site, and(d) that waste water would be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the potential development, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 63(1) or 65(2), or(b) the potential development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made—(a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 63(1) or 65(2) and despite paragraph (3)(a),(b) in representations made by the appropriate nature conservation body, in accordance with regulation 63(3), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation.(6) In this regulation—“potential development” , in relation to a relevant decision, means development—(a) that could be carried out by virtue of the planning permission, development order or scheme to which the decision relates, or(b) to which the decision otherwise relates;“relevant decision” means—(a) where any of the following provides that the assessment provisions apply in relation to doing a thing, the decision whether or not to do it—(i) regulation 70 (grant of planning permission),(ii) regulation 79 (special development orders),(iii) regulation 80 (local development orders),(iv) regulation 81 (neighbourhood development orders),(v) regulation 82 (simplified planning zones), or(vi) regulation 83 (enterprise zones),(b) where any of the following provides that the review provisions apply in relation to a matter, a decision under regulation 65(1)(b) on a review of the matter— (i) regulation 71 (planning permission: duty to review),(ii) regulation 79 (special development orders),(iii) regulation 80 (local development orders),(iv) regulation 81 (neighbourhood development orders),(v) regulation 82 (simplified planning zones), or(vi) regulation 83 (enterprise zones);but this does not apply to a matter mentioned in regulation 71(4) (any review of which would be conducted in accordance with another Chapter),(c) a decision on an application for a consent, agreement or approval required by a condition or limitation attached to a planning permission, or specified in an order, granted under Part 3, 7 or 13 of the Town and Country Planning Act 1990,(d) a decision whether to grant a reserved matters approval in accordance with section 92(1) of that Act, or(e) a decision whether to approve a biodiversity gain plan under paragraph 15 (approval of biodiversity gain plan) of Schedule 7A to that Act.Decisions where nutrient pollution in waste water is relevant: general development orders(1) Paragraph (2) applies where—(a) a local planning authority (within the meaning given by regulation 78(1)) makes a decision on an application under regulation 77 (general development orders: approval of local planning authority) for approval as mentioned in regulation 75 relating to proposed development in England,(b) urban waste water from the proposed development could affect a relevant site, and(c) that waste water would be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 77(6), or(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made—(a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 77(6) and despite paragraph (3)(a),(b) in the opinion provided by the appropriate nature conservation body, in accordance with regulation 76(4), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation. Regulations 85A and 85B: interpretation(1) In regulations 85A and 85B—“nutrients” means nutrients—(a) comprising nitrogen or phosphorus, or(b) comprising compounds of nitrogen or phosphorus;“relevant site” means a habitats site connected to a nutrient affected catchment area;“urban waste water” has the meaning given by regulation 2(1) of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (S.I. 1994/2841).(2) In the definition of “relevant site” in paragraph (1) “habitats site” and “nutrient affected catchment area” have the meaning given in section 96J(2) of the Water Industry Act 1991; and a habitats site is connected to a nutrient affected catchment area if water released into the catchment area would drain into the site.”Part 3Land use plans12 Chapter 8 of Part 6 (assessment of plans and projects: land use plans) is amended as follows.13 In regulation 105 (assessment of implications for European sites and European offshore marine sites), after paragraph (6) insert—“(7) See regulation 110A for provision about the effect of nutrient pollution in waste water.”14 In regulation 106 (assessment of implications for European site: neighbourhood development plans), after paragraph (3) insert—“(3A) See regulation 110A for provision about the effect of nutrient pollution in waste water.”15 In regulation 110 (national policy statements), in paragraph (3)(a), for “and 108” substitute “, 108 and 110A”.16 After regulation 110 insert—“Assessments under this Chapter: decisions where nutrient pollution in waste water is relevant(1) Paragraph (2) applies where—(a) a plan-making authority makes a relevant decision in relation to a land use plan relating to an area in England,(b) urban waste water from the area to which the plan relates could affect a relevant site, and(c) that waste water could be dealt with—(i) under an environmental permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, or(ii) in accordance with standard rules published under Chapter 4 of Part 2 of those Regulations.(2) When making the relevant decision, the competent authority must assume that nutrients in urban waste water from the area to which the plan relates, whether alone or in combination with other factors, will not adversely affect the relevant site.(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—(a) an appropriate assessment is required by regulation 105(1) or 106(3), or(b) the proposed use of the land will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.(4) The assumption in paragraph (2) must be made even if a finding (however described) to the contrary is made— (a) in the conclusions of an appropriate assessment, carried out in accordance with regulation 105(1) or 106(3) and despite paragraph (3)(a),(b) in representations made by the appropriate nature conservation body, in accordance with regulation 105(2), or(c) by any other person.(5) A competent authority is not to be regarded as having failed to comply with a duty imposed by any provision of these Regulations or another enactment because it has acted in accordance with this regulation.(6) In this regulation “nutrients”, “relevant site” and “urban waste water” have the meaning given in regulation 85C.(7) In this regulation “relevant decision” means—(a) a decision whether to give effect to a land use plan, or(b) a decision whether to modify or revoke a neighbourhood development plan.””Member's explanatory statement
This amendment substitutes Schedule 13, which amends the Conservation of Habitats and Species Regulations 2017, to provide that certain authorities/bodies (when exercising duties or making decisions relevant to the regulations) must assume that nutrients in waste water from proposed developments will not adversely affect habitats sites.
Baroness Scott of Bybrook
“(3A) Where—(a) the nutrient significant plant referred to in paragraph (1) is a plant that discharges treated effluent into a catchment permitting area (see section 96FA of the Water Industry Act 1991), and(b) the sewerage undertaker has failed to comply with a condition in the environmental permit for the plant imposed in pursuance of subsection (3)(b) of that section,the definition of “excess nutrient pollution” in paragraph (3) is subject to the following modifications.(3B) In a case where the condition relates to the total nutrient pollution discharged by the plant specifically, references in that definition to the “upgrade date” are to be read as the “applicable date”.(3C) In a case where the condition relates to the total nutrient pollution discharged by all plants that discharge into the associated catchment area, that definition is to be read as if—(a) in the words before paragraph (a), after “by the plant” there were inserted “and all other plants that discharged into the associated catchment area for that plant”,(b) in paragraph (a), for “upgrade date” there were substituted “applicable date”, and(c) in the words after paragraph (b)—(i) for “that it” there were substituted “that both it and those other plants”, and(ii) for “upgrade date” there were substituted “applicable date”.(3D) For the purposes of paragraph (3) as modified by paragraph (3B) or (3C), the “applicable date” is to be determined in accordance with section 96FA(6)(a) of the Water Industry Act 1991.”Member’s explanatory statement
This amends the provision to be inserted into the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 by clause 160 so that provision functions in relation to catchment permitting areas, introduced by the second amendment in my name to clause 158 at page 188, line 22.
Baroness Taylor of Stevenage (Lab)
My Lords, the percentage of second homes in so many parts of the country has had such a devastating impact on communities. We heard about that in great detail in Committee and had many examples from all sides of the House. We noted that it particularly impacts on rural and coastal communities. I am also concerned about the tax loophole and that so many second home owners avoid paying either council tax or business rates. This is clearly an anomaly and needs to be resolved.
The amendments in the names of the noble Lords, Lord Foster and Lord Shipley, would be an important next step in tackling this. We too welcome the licensing steps already taken but, if we are going to tackle this, we need to go one step further. We look forward to hearing the Minister’s response to the amendments proposed.
Earl Howe (Con)
My Lords, Amendments 247YYE and 288B, in the name of the noble Lord, Lord Foster, and spoken to by the noble Lord, Lord Shipley, bring us to the often sensitive issue of second homes. We recognise that large volumes of second homes or short-term lets can become an issue when they are concentrated in particular areas. That is why the Government have taken decisive action. We committed to introduce a registration scheme for short-term lets in England through this Bill and consulted on the design of the scheme earlier this year. At the same time, we also consulted on proposals for a new short-term let use class with associated permitted development rights. Further announcements on both consultations will be provided in due course.
We introduced higher rates of stamp duty for second properties in 2016 and a new stamp duty surcharge for non-UK residents in 2021, and new measures to strengthen the criteria for holiday lets to be eligible for business rates came into effect in April. Furthermore, this Bill will give councils the discretionary power to apply a council tax premium of up to 100% on second homes.
The noble Lord, Lord Shipley, asked why we are not making further changes in respect of second homes. Through the Levelling-up and Regeneration Bill and other measures, the approach we are taking is to boost housing delivery more broadly to make more homes available, including in those areas where there are high concentrations of second homes. Second homes that are additionally let out may fall within the short-term let use class that I mentioned where they meet the definition.
It might be helpful if I say a little more about the Government’s approach to first-time buyers in particular. We recognise the hardship people face when they cannot find a home of their own. Our £11.5 billion affordable homes programme will deliver thousands of affordable homes to rent and buy right across the country. The Government are committed to helping first-time buyers to get on to the housing ladder. We operate a range of other government schemes, including shared ownership and the lifetime ISA and we continually keep options to support first-time buyers under consideration. We are also committed to ensuring that enough homes are built in the places where people and communities need them and our first homes scheme is providing new discounted homes prioritised for local first-time buyers.
The noble Baroness, Lady Taylor, referred to the common perception that some second homeowners may pretend to let out their property in order to benefit from small business rate relief. That is why the Government introduced, from April this year, new criteria for holiday lets to show that they have been let for at least 70 days and have been available for at least 140 days in the previous year. If they are entitled to receive small business rate relief as a holiday let operator, that is perfectly appropriate. If a property cannot demonstrate those criteria, it will be liable for council tax.
Earl Howe (Con)
My Lords, in Amendment 248 my noble friend Lord Holmes of Richmond brings us back to the use of roads adjacent to pavements that have been granted a licence. I can assure him that there are already clear processes by which a local authority can consider the pedestrianisation of a street, including to facilitate outdoor dining, with vehicular access a relevant consideration in those processes: this is not an issue that will be glossed over. Pavement licences can then be granted if the conditions are seen to be right and, in recent years, we have seen the success of this in practice across the country.
The noble Baroness, Lady Pinnock, returned to the question of new powers for local authorities to charge for the use of the pavement. She is probably aware that the Business and Planning Act 2020 does not give local authorities a specific power to charge ongoing rent for the use of the pavement, and the aim behind that measure is to support businesses by making it significantly cheaper to gain a licence, compared to the previous route. The measure fully funds local authorities’ costs for providing this service: we are not looking to impose additional costs on businesses at a time of rising costs.
My noble friend’s Amendments 249 and 250 concern the fees to be charged for pavement licensing. The Government feel very strongly that we must keep costs reasonable and consistent for businesses. At a time when their costs are rising, we should not place additional financial burdens on businesses still recovering from the pandemic. The fee caps in the Bill have not been arrived at by accident but are the result of close work with local authorities, businesses, leaders from the hospitality sector and communities. They reflect the actual costs of processing, monitoring and enforcing pavement licences. I also make the point, on Amendment 250, that the direct attribution of profit to the granting of a licence would not be a simple matter.
As for my noble friend’s proposal in Amendment 253 for deemed rejection rather than a deemed granting of a licence in the event of no decision being made within the determination period, I say to him that it would not be right to punish applicants for delayed local authority decisions. Deemed consent encourages local authorities to make decisions while ensuring that the local and national conditions which would otherwise have applied are applied and can then be enforced, including by the removal of the licence.
My noble friend’s Amendment 251, changing the start of the consultation period to the time at which a receipt has been sent to the applicant, would add an additional and, in our view, unnecessary step and potentially delay the process.
Amendments 252 and 255 would likewise increase both the consultation and determination periods that apply. We have listened carefully to the views of local authorities, communities, businesses and other concerned organisations and believe that our proposals strike the right balance, protecting the ability of everyone to be heard while ensuring that businesses receive a decision in a reasonable timeframe.
I turn to my noble friend’s Amendments 254 and 256 dealing with the free flow of pedestrians and the conditions which may be imposed by a licence. The Business and Planning Act 2020 already requires that local authorities take this into consideration, preventing licences being granted where they would preclude entry on to or passage along the highway, or normal access to premises adjoining the highway. On Amendment 256, the Act already provides powers for local authorities to impose conditions such as these, and we are anecdotally aware of local authorities having done so. As such, we do not consider that specific reference to the discretion for local authorities to do so is needed. These are rightly matters determined locally.
The noble Baroness, Lady Taylor, suggested that the Government’s wording in this area was not quite tight enough. We have made it clear in the pavement licence guidance that, when setting local conditions and determining applications, local authorities should consider the need for barriers to be put in place to separate furniture from the rest of the footway so that people who are visually impaired can navigate around the furniture. As recommended by the RNIB, we have highlighted that best practice involves using measures such as colour contrast and a tap rail for long cane users. However, this will need to be balanced to ensure that any barriers do not inhibit access for other street users, such as people with mobility impairments, if they are creating a further obstacle in the footway.
On Amendment 257, I thank my noble friend for raising the very important issue of accessibility and the impact of pavement licensing on disabled users of the highway. In considering whether to grant a licence, Section 3(7) requires particular regard to be given to the needs of disabled people and to guidance on this matter published by the Secretary of State. That guidance, developed in close collaboration with the Guide Dogs for the Blind Association and the RNIB, includes details of minimum accessibility width considerations for disabled persons. We believe that the determination as to the best way to meet the needs of disabled persons is best made locally, taking account of the specific circumstances for that pavement, particularly since physical barriers may on occasion hinder accessibility, as I have already alluded to.
Finally, Amendment 258, in the name of my noble friend Lord Young of Cookham, would create a national condition banning smoking in pavement licensed areas. Of course I understand very well the strength of feeling expressed by my noble friend and a number of noble Lords on the nuisance caused by the smoking of tobacco. Both my noble friend and the noble Baroness, Lady Northover, called for pavement licensing to be made smoke-free. My noble friend stressed the need to protect the interests of non-smokers in particular.
I can tell the noble Lord, Lord Faulkner, that the Government fully recognise the importance of this issue for public health, but we also recognise the need to do what is reasonable and proportionate in all the circumstances. Our guidance already makes it clear that pavement licences require businesses to make reasonable provision for seating for non-smokers to ensure choice for customers. It is also clear that ways of meeting this requirement could include clear “No Smoking” signs, the removal of ashtrays in smoke-free areas and a minimum 2-metre distance between smoking and non-smoking areas, wherever possible. Local authorities are also able to consider setting their own conditions, where appropriate, and where local decision-makers believe it is reasonable to do so. We are aware that a number of councils across the country have put in place local conditions with the effect that noble Lords are calling for. As my noble friend Lord Naseby rightly said, it is perfectly possible for councils to do this, and we think it is better for decisions of this sort to be taken locally so that individual circumstances are taken into account.
I recognise the intention behind my noble friend’s amendment, which is a benign intention. However, I think he would concede that this is an issue wholly different in kind from that of planning fees, where it is incumbent on government to ensure financial fairness across the country. We consider it right that this is a decision made locally, taking into account the representations received, rather than imposed nationally.
Lord Young of Cookham (Con)
Before my noble friend sits down, he has said that this is a decision best taken locally. But that is not what the Local Government Association wants—it wants it to be taken nationally.
Earl Howe (Con)
Well, my Lords, the Government will continue to listen to the Local Government Association very carefully in this connection. I can only say that we are not persuaded yet that this move would be the right one, having consulted extensively with all stakeholders involved.