Infrastructure Bill [HL]
Baroness Parminter Excerpts(10 years ago)
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Baroness Parminter (LD)
My Lords, I thank the noble Baroness for tabling the amendment and for the opportunity to discuss this issue. There is a clear consensus around the House in opposition to the sale of our public forestry estate. I say that as someone who lives in the most wooded county in our country, which I suspect is somewhat surprising to some noble Lords—the county of Surrey.
It is a great disappointment that the promised draft legislation for a new body for the public forestry estate has not yet been provided. That is contributing to the genuine concern, to which my noble friend Lord Phillips referred, that is being articulated by the hundreds of constituents around the country who feel unsure about the Government’s intentions. In the early days of the coalition Government, when there was no Liberal Democrat Minister in Defra, it was a great shame that the possibility of selling off the public forestry estate was proposed. It was a great credit to the campaign in which many noble Lords participated that that was overturned. I should be grateful if the Minister could state what the Government’s position is now because in 2013 we had the Government’s forestry and woodlands policy statement.
In Committee, the Minister clearly set out the settled position of the coalition Government that the forestry estate is not for sale and that we will not transfer the public forestry estate to the HCA. That is the clear intention of this Government. However, future Governments could bring in new pieces of legislation and no one can speak for future Governments. Like my noble friend Lord Greaves, I know that so far the Liberal Democrat party is the only party that has committed to make developments in this area in the future.
In conclusion, I am not entirely persuaded of the need for the amendment. I can see why a belt and braces argument works in one sense, but my worry is that if we accept the amendment there will be a perception among the general public out there that this House does not believe the Government’s intentions for the public forestry estate. Although I am very happy not to agree with my Government and not to accept their position on many, many issues, I feel that on this issue they are acting in good faith. I would therefore be unhappy if the House sent out that message to the general public. Like my noble friend Lord Jenkin, I will listen very carefully to the remarks of my noble friend the Minister and hope that he can reassure us about the intentions of the Government and reassure us that this amendment is not necessary.
Lord Ahmad of Wimbledon
My Lords, first, I thank all noble Lords who have participated in this important debate and thank the noble Baroness, Lady Royall, for tabling the amendment.
The public sector land programme is about bringing disused land currently owned by central government back into productive economic use, supporting homes and jobs, an objective to which I am sure all noble Lords adhere. Where land is no longer needed by government, it will be transferred to the Homes and Communities Agency, which will prepare the land for release to the market and work with local planning authorities to ensure that the land is used in a way that best benefits the community—for example, by supporting local housing needs. We have had many debates, and I am sure that we will continue to have them, about the importance of housing and housebuilding to boost economic growth.
Better reuse of disused land will in turn support our desire—I make it clear that it is the Government’s desire—to protect the green belt and amenity land, such as forests, woodlands and open spaces. Disused government land can and does already transfer to the HCA, but the process is often more bureaucratic than is necessary. This clause is simply about increasing the rate of delivery and efficiency by streamlining internal government procedures.
Let me be clear. The intention behind Clause 21 is not to sell off the nation’s forests. You know what—I have been to a forest or two and I enjoyed a woodland or two as a child, and I want my children to continue to enjoy those very things, as I did. I have made this clear repeatedly, in my meetings with noble Lords—with the noble Baroness in particular—and most recently in a Written Ministerial Statement, published yesterday. I assure all noble Lords that the Government have no plans to dispose of the public forest estate and the powers contained in Clause 21 of the Infrastructure Bill do not present a threat to the future of the estate in public hands. The estate is not surplus, and it is not owned by an arm’s-length body. The Homes and Communities Agency’s objectives are to work with the Government and other public bodies to unlock and accelerate the release of surplus public land for the creation of new homes and employment opportunities, in line with designated government policy. The aim is to make best use of previously used and brownfield land, protecting green belt and amenity land that create and support great places to live.
Infrastructure Bill [HL]
Baroness Parminter Excerpts(10 years ago)
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Lord Davies of Oldham
My Lords, I speak to Amendments 59 and 60, and to indicate to the Minister that we support the clause but that there are a few issues that we wish to take further. We recognise the extent to which the Minister has responded to the contributions that were made in Committee about these issues. The Bill is much better drafted as a result of her amendments—or will have been better drafted after her amendments have been accepted—than it was when we saw it in Committee. We acknowledge the changes in the Government’s position on the meaning of “native” and “non-native”, and we thank the Minister for taking our comments in Committee on board on this important issue.
The current language in the Bill could have significant adverse effects on biodiversity. We recognise the necessity to protect against invasive and non-native species, but it is also important that we see the extent to which biodiversity is protected in a world where there are many restrictions and anxieties about the reduction in biodiversity. I am particularly concerned about the omission of certain species from the Bill and the fact that the Bill, as it stands, takes no account of the protection afforded to native species such as the beaver.
The habitats directive, which is an EU directive adopted in 1992 and is one of the EU’s two directives relating to wildlife and nature conservation, aims to protect some 220 habitats and approximately 1,000 species listed in the directive’s annexes. These are species and habitats considered to be of European interest, following criteria given in the directive. Article 12 of the directive states that all the species listed in its Annexe IV require strict protection in their natural range, and the species listed in this annexe include the European beaver. We are concerned that the Minister appears to give no recognition to this fact. There are growing concerns around the UK and Europe that the habitats directive is being undermined or is not being fully or properly implemented. Therefore, it is important to highlight the legal protection that it provides for particular species.
The amendments that the Government have put down are, of course, welcome, and I appreciate the extent to which the Minister has listened to the work of the Committee. However, they introduce a possibility that native species can be placed on a list of difficult animals and so can receive species control orders. For example, the absence of native species such as the beaver from Part 1A is worrying, as is the inclusion of the wild boar in Part 1B. Wild boar is clearly now being re-established as a significant species in the United Kingdom, and I want to make the case with regard to the beaver. Amendment 85 adds beavers to the list of native animals. We are aware that some consider the beaver to be recently introduced, but archaeologists have discovered remains of beavers that go back over a considerable period of time. It is true that they largely died out 500 years ago, although the most recent known reference is in the late 18th century. Within Great Britain, there are currently several populations of beavers, one in Devon and two separate populations in Scotland. One of those, in Argyll, is an official trial reintroduction, which is due to conclude in 2015. The other two are made up of beavers that have likely escaped from wildlife centres and begun to breed.
In 2011, Scottish Natural Heritage estimated that there were at least 39 groups of beavers in the River Tay area and they are reportedly spreading into other river systems. It is therefore clear that beavers are already living wild in the UK in significant numbers and are well established in this country. To date, there have been 157 beaver reintroductions throughout Europe and there are now free-living populations in around 30 European countries, including our neighbours the Netherlands, Belgium, France and Denmark.
As it currently stands, the Bill would classify beavers are “not ordinarily resident” and would allow them to be controlled by techniques aimed at invasive species. This takes no account of the fact that beavers are a native component of British wildlife, as I have sought to demonstrate, and I hope that the Minister will respond to those points when she comes to sum up.
Finally, on our Amendment 80, we are concerned about,
“the standards of animal welfare required when carrying out species control agreements and orders”.
We recognise that the Minister has moved a great way to accepting that definition and I record our appreciation of that point at this late juncture.
Baroness Parminter (LD)
My Lords, like the noble Lord, Lord Davies, I thank the Government for the large number of amendments and the movement that has been secured by the Minister and civil servants since we met in Grand Committee. We are all in support of the Government’s intention to deal with the problem of non-native invasive species, but we were concerned about some of the possibly unintended but nevertheless serious consequences of some of the wording around non-native. I will not repeat the arguments because the time is late, but I am particularly pleased that the Government have, through these amendments, addressed those particular issues of definition and that the native species that were wrongly classified as non-natives have been moved into a separate section.
However, another area of concern was the potential for this legislation to impact on future reintroductions of formerly native species that could have important benefits for biodiversity targets and people’s experience and appreciation of nature. We are all opposed to unlicensed reintroductions but question marks still remain over the ability of control orders to apply, for example, to formerly extinct animals that naturally recolonise here. I accept that getting definitions to cover all these potentialities is extremely difficult and it may be asking too much for the Bill to cope with that. Therefore, it was extremely reassuring in Committee to hear the Minister say that control orders would be looked at on a case-by-case basis. However, it is equally key that the code of practice is used to set out the intent of the limited use of control orders. I am therefore pleased that the Government have moved to ensure full public consultation on the code of practice. The opportunity to give further reassurances about the use of control orders could be done by more expansively setting out their proposed limited use therein.
I have a question about Amendments 84 and 85, tabled by the noble Lord, Lord Davies of Oldham. Proposed new Part 1B amends Schedule 9 to the Wildlife and Countryside Act to include animals no longer normally present. The addition by the noble Lord, Lord Davies, of the beaver prompts me to ask the Minister, like him, what criteria the department are using to select just wild boar to be included in the proposed new Part 1B. I invite the Minister to say a few more words in her summing up about the criteria that would be used to assess any other species that might be added. As she said, the beaver might be one of those. It is important that we are clear about the criteria before we move forward.
Baroness Young of Old Scone (Non-Afl)
My Lords, I add my thanks to the Minister for her amendments, which have removed some of the anomalies that resulted from the original drafting. I commend the Government for the principle of tackling in legislation, at long last, the issue of invasive non-native species—something that has been called for for many years. We are nearly there but it does need some further improvement. However, I join the barn owls, red kites and corncrakes in thanking the Minister for the progress made so far.
However, in common with many other noble Lords tonight, I am rather unclear about the Government’s intentions as other changes created by the new drafting seem to have some adverse aspects. They stem, for the most part, from the move from the original intention of this clause in the Bill as it was first drafted, which was to address the problem of invasive non-native species. That was very much stressed in the Explanatory Notes. However, the debate in Committee and the amendments as they have come forward seem to indicate that the clause is now seen as being wider than its original intent of simply addressing invasive non-native species, and that it could include the control of some species that I would regard as de facto native. The crux of this is the tricky new category of “no longer normally present”.
If I understand it correctly, the effect of the amendment would mean that it would still be possible to apply control orders to native species. This might be appropriate for those unlicensed reintroductions that have proven problematic in some circumstances, but the clause rather goes beyond that. It specifically introduces, in new Part 1B of Schedule 9 to the Wildlife and Countryside Act, the category of species not normally present, into which boar has been placed. I agree with other noble Lords that we need some clarity about why boar was selected, and what criteria would be used were other species to be added to this part of the schedule in the future.
We also have to be mindful of EU legislation. It is important to understand how this provision would sit with Article 12 of the habitats directive, which gives special protections to species within their natural range, listed in Annex IV, regardless of how they arrive there. I ask whether it is really the Government’s wish to apply control orders to animals that have formerly been present in Great Britain and have naturally recolonised this country. A consequence of the “no longer normally present” definition could be that an animal that has been extinct in Great Britain but starts to recolonise the country could be subject to a species control order.
Even though it is this time of night, I will briefly commend the spirited support for the beaver by the noble Lord, Lord Davies of Oldham. The beaver is an excellent creature, which one could have said was no longer normally present for a while, but it appears to be very much present and breeding like beavers at the moment. I will correct some of the misapprehensions that arose in discussions about the beaver in Committee. The European beaver is extremely different from the North American beaver. It does not build whacking great dams and it does not create floods. In fact, it is one of the most perfect managers of mosaics and beautiful habitats that I have ever seen. If noble Lords get a chance to go and see a habitat as managed by a European beaver in Scotland or, indeed, any of the other places where it is popping up and breeding well, do go. It is a delight. Certainly, I cannot imagine the circumstances in which a vegetarian animal, which creates no damage, could possibly ever be subject to a control order.
To conclude, I am grateful that the clause is now better, but a little extra push could get us all the way. In particular, I urge the Minister, as well as answering my points, to tell the House why the Government want to extend the purpose of the clause beyond invasive non-native species and what they are trying to achieve through the definition of “no longer normally present”.
I hope that the Government will address those issues; if not now, when the Bill proceeds to the other place.
Baroness Kramer
My Lords, I apologise. The late hour is completely turning my brain to pulp and it was not that great to begin with.
To address the issues raised in Grand Committee we have tabled four amendments in respect of the English and Welsh codes of practice that accompany the provisions. Amendments 79 and 82 ensure that the codes of practice must set out standards of animal welfare to be applied in respect of species control operations under agreements or orders. Amendments 81 and 83 ensure that a public consultation on the codes of practice will be carried out before they are issued. As currently drafted, only the Secretary of State and Welsh Ministers are required to consult the environmental authorities.
Additionally, we wish to make four minor and technical amendments. As currently drafted, where an owner appeals against an order, they are not required to carry out any operations specified in that order until the appeal is finally determined by the tribunal. Amendment 72 clarifies that where appeals are brought, the period of suspension of the need to carry out operations will come to an end when the appeal is determined by the tribunal, or the owner withdraws the appeal. As currently drafted, there is no reference to withdrawing an appeal.
Amendment 73 removes the time limit for making an appeal to the First-tier Tribunal, against an order, from this legislation. Time limits are governed by the tribunal’s statutory procedure rules, so it is not appropriate for these to be duplicated in these provisions. We can, however, set out the time limit that applies in the codes of practice to provide clarification for owners.
The financial penalty for offences under these provisions was drafted on the assumption that Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which provides for an unlimited fine, would come into force before these provisions would be commenced. It is now uncertain that this will be case. Amendment 76 therefore clarifies that where an offence has been committed, the current penalty, a fine not exceeding £40,000, will apply until Section 85 is commenced. Amendment 78 clarifies that the Secretary of State and the Welsh Ministers may make joint or separate arrangements for the payment of compensation to an owner. This is to ensure clarity on this issue, should it arise.
Baroness Parminter
My Lords, on behalf of the House, though there is almost no one here to hear it, I thank the Minister and civil servants for listening to those of us in Grand Committee who argued particularly on two issues. First, this is a controversial subject. As I said earlier, we all agree that we need to control non-native invasive species, but the range of views among stakeholders is controversial. That the code of practice will be open to full public consultation, which was not in the original Bill, is a very welcome initiative. Equally, I am grateful that Peers had the opportunity to see the draft of those codes of practice before Report. That was extremely helpful.
Secondly, the other issue to which the noble Lord, Lord Davies, referred earlier is the fact that the Bill now rightly includes humane standards of dispatch for any animals which are subject to control orders. That was a large oversight which has been rightly rectified. If animals are going to be controlled, as some will have to be, it should be done with minimum suffering, pain and distress. It is to the credit of this coalition Government that that has been included.
Lord Teverson
I add my congratulations. I contributed to this debate in Grand Committee. It is good to see that a great deal of listening has taken place and some practical action has occurred. I am impressed that the Minister is also such an expert on areas such as non-native invasive species. The fact that a lot of these issues have been resolved is a good example of how government can work with the House to resolve important issues such as this one. Given globalisation, this area will grow in importance as the years go on. It is important that we get it right now. I congratulate the Minister on what she has managed to achieve.
Infrastructure Bill [HL]
Baroness Parminter Excerpts(10 years, 4 months ago)
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Baroness Donaghy (Lab)
My Lords, I support my noble friend. There was a good example in Australia, which I could perhaps relay to the Committee. My brother, who lives in housing association accommodation, was invaded by a possum. It was in his roof for about three years before he was able to persuade the housing association to do something about it. Of course, the possum is a protected species but eventually along came Paul, the “Possum Whisperer”, whose job it was to persuade the possum to leave the premises without endangering the species. He did that without any harm to the premises or to the possum, but the end of the story was that the possum re-emerged slightly later, next door but one. The neighbour knocked on my brother’s door and said, “Hey, I’ve got this possum—any advice about how to get rid of it?”. My brother said, “Well, Paul the Possum Whisperer is the person that you need to go to”. So there was a job creator as well as a very skilled person, who could act in a humane way to protect the animal. It may be that the Government could indulge in some job creation activity here by creating skills such as sheep whisperers and beaver whisperers to get these animals off the premises without any harm. This is a very good amendment, which we should support.
Baroness Parminter (LD)
On these Benches, we have some sympathy with this amendment. When we are looking at how we take forward species control agreements, it is important that some principles are set up out front. While I would not go so far as the noble Lord, Lord Davies, and talk about animal rights, we on these Benches support animal welfare.
There are two reasons why this amendment has some merit. First, we need these species control orders to be effective and humane. That is where I have a slight difference of opinion with the noble Lord, Lord Davies of Oldham. We may have disagreements about the outcomes of the Government’s badger-culling pilots, but the Government went in on the basis that the pilots were to test whether a cull was effective, humane and safe. These species control orders should follow the same principles of being effective and humane.
My second point, which may find more favour with some in government, is that clearly whether species control orders go ahead and the cost attached to them will depend on how they are undertaken. It is a damn sight cheaper to free shoot than it is to trap and shoot. Whether a form of species control is humane will have an impact on the cost. Therefore, when we are setting up the principles behind these species control agreements, it is important that a marker is set down that they should be humane, because that will have an impact on the cost, which will be determined on a case-by-case basis for these species control agreements.
For those two reasons, this amendment has some merit. Equally, I think it has the merit that it does not stipulate the control method to be used for each of these species control agreements but talks about the principles for the code. That is what we should be doing. We should be setting down some fundamental principles in the code which can then be interpreted on a case-by-base basis for each of the species control agreements.
Baroness Kramer
My Lords, the noble Lord, Lord Davies of Oldham, is quite right that most people who find that there is a non-native invasive species on their land are glad to co-operate. Unfortunately, about 5% will not. We have experience of this, particularly in the south-east, where it has been extremely difficult to get access when there has been a suspicion about the presence of the North American bullfrog, which eats every amphibian it comes across, and there have been various problems caused by floating pennywort. Unfortunately, there is a history of non-co-operation with access as well as non-co-operation with eradication. We have to be realistic about the consequences of that.
We are attempting to capture beavers and test them because the great fear is that they are Bavarian and come with an extremely nasty disease that is common to Bavarian beavers. Frankly, I had not heard of it before this Bill, but it is a zoonotic disease that I am told one must avoid at all costs.
Amendments 74 and 78 would require the respective codes of practice to set out the standards of animal welfare required when carrying out species control agreements and orders. We agree that control operations need to be consistent with existing published government policy on the welfare of wild animals. Your Lordships may wish to know that the EU invasive alien species regulation that is expected to come into force on 1 January 2015 requires that,
“animals are spared any avoidable pain, distress or suffering”,
in the carrying out of eradication or management measures for those species subject to the regulation.
As the noble Baroness, Lady Parminter, underscored, we have a very useful code of practice that is going to play a very significant role in the use of these control orders. I give a commitment to take a look at that code of practice and see whether there is a sensible way in which to specify welfare obligations in that. If there is, we will come back with a response before Report, because it is our intent to make sure that animal welfare is appropriately protected. I hope that that is sufficient reassurance to allow the amendment to be withdrawn.
Infrastructure Bill [HL]
Baroness Parminter Excerpts(10 years, 4 months ago)
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Lord Berkeley
My Lords, these are interesting amendments which, as the noble Lord, Lord Bradshaw, has said, cover a wide range of issues. It is definitely time to revisit the issue of damaged roads. Road vehicles are getting heavier and their tyre pressures are higher, but that may be balanced by improved suspension systems, making this a complicated calculation. Of course, higher speed incurs more damage to vehicles of all types. It is reasonable that vehicle excise duty, in the absence of any sort of road user charge, should reflect the different types of damage caused to roads as well as congestion and pollution. We need also to take into account something else which has come to the fore in the past few years. Worsening road surfaces are having a serious effect on cyclists. If the Government want more people to take up cycling, it must be safe for them to do so. A large pothole can cause a cyclist to fall off their bike and hurt themselves, and at night the potholes cannot be seen because they are so deep. It is a serious issue and now would be a very good time to address it.
On proposed new paragraphs (2)(c) and (d) in Amendment 64, we are where we are with the undertakers. I suspect that that is one reason why we do not do more with our roads. Constructing trams in cities is so expensive because the private sector undertakers take anybody to the cleaners if they want to build anything. I do not see an easy solution, except that they need to be kept up to the mark and ensure not only that the quality of the reinstatement is good but that the time it takes is kept short. Some emergency potholes and road works are there for weeks.
On new paragraph (d), damage to the roads in the past couple of winters probably reflects the same cause and effect as damage to the rail network: the weather has been very bad. The motorways mostly stayed open, as did the existing high-speed rail link because they have been designed and built in the past 50 years to cope with the current forecast weather conditions and using more modern drainage systems—slopes on cuttings and so on—which are appropriate. Most of the other roads and the classic railway system has suffered from being built 100 or 150 years ago. It is time to look at all that again, and it would be interesting to see the results. I hope that the Minister will look on the amendment with favour.
Baroness Parminter (LD)
I support the Minister looking closely at the amendment from my noble friend Lord Bradshaw for two reasons: first, because of the point he made that we need roads of good quality, whether you are the user of a car, a cyclist or some other person travelling on the road. We are facing far less revenue coming in to the Treasury to pay for them and need to find other sources of funding. That seems to be a reasonable proposal.
Secondly, I follow on from the comments of the noble Lord, Lord Berkeley, about cyclists. I speak as someone whose husband suffered a serious cycling accident two years ago—the police do not know whether it was because he went into a pothole or was hit by a car and then hit a pothole, but potholes were clearly involved in that accident, and he still has no recollection of what happened. There is an increasing number of good reasons to encourage children on to bicycles. I speak as someone who cycles my youngest to school when I can. It is madness for us to want children to be encouraged to go out to cycle for the health benefits that that gives them if, by the time they are adults and cycling to work, the roads are in such poor condition that it is not safe for them to go on them.
We need safe and well funded roads, which means that the Government are going to have to be creative in how we find that money. I think that the amendment offers an opportunity for further discussion and debate.
Lord Davies of Oldham
My Lords, my noble friend Lord Bradshaw is nothing if not creative in his response to transport problems. I guess that this is a creation a little too far for the Minister, but we shall see from her response. I understand my noble friend’s arguments and agree with some of them very strongly. We do not have a real measurement of the impact on our roads of heavy vehicles. The most amazing thing that any road user has to come to terms with is looking at the carriageways which heavy trucks have been traversing and then at the other two which are used by cars. You are looking at what is virtually trench warfare. The impressions in the surface reflect the enormous impact of goods vehicles, so whether they pay enough is a challenging financial issue. I am sure that the Minister will be able to explain just how great that challenge is.
On the question of potholes, I do not deny that there are potholes on all our roads. They are a serious issue on our main trunk road networks because vehicles can become involved in desperately bad accidents either through hitting them or by seeking to evade them at the last moment. However, I venture to suggest that most of the problems of potholes are not on the strategic road network; they are on the local road network. That is where we have such a massive problem, which is partly a product of our perhaps not employing the best possible techniques when building them and partly because we have had some very severe weather in recent winters. We all know the havoc that that has wrought on our roads. However, that does not alter the facts. I know that the Government talk of extra sums being made available, but they look pretty thin on the ground for local authorities when it comes to the challenges they face.
I have considerable sympathy with the amendment of the noble Lord, Lord Bradshaw, not least because he sees yet another opportunity to articulate clearly an important dimension of our transport anxieties. I am just grateful that it is the Minister who has the task of allaying them.
Baroness Parminter
Baroness Parminter
My Lords, after the destruction of habitats, the introduction of invasive non-native species is perhaps the most urgent threat to biodiversity. There are more than 3,000 non-native species in Britain today. Some are very familiar, such as the grey squirrel or the Himalayan balsam that clogs up our riverbanks. Others are less obvious, such as the signal crayfish or harlequin ladybirds, but their impacts can be just as serious.
The economic impact of invasive species on the UK has been estimated at £1.8 billion every year, which includes £1 billion to the agriculture and horticulture sectors and more than £200 million to the construction, development and infrastructure sectors. More personally, invasive non-native species impact on our sense of place—what makes our corners of Britain distinctive and precious. That is why it is important for the Government to act. I warmly welcome the principles behind Clause 16, which would introduce new powers to compel landowners to take action on invasive non-native species or permit others to enter their land and carry out those operations. However, I have introduced Amendments 64A and 65A to explore two apparent weaknesses in the drafting of the clause.
The Bill defines a species as non-native if it is listed in Part 1 or 2 of Schedule 9 of the Wildlife and Countryside Act 1981, or if,
“it is not ordinarily resident in, or a regular visitor to, Great Britain in a wild state”.
Both of these definitions seem to me to be rather problematic. Defining something as non-native if it is not ordinarily resident in Britain could end up rendering species that have gone extinct as non-native, just because they are not currently resident. As it is drafted, new paragraph 2(3)(b) of Schedule 9A effectively sets the status quo of British biodiversity in law—a one-way system for biodiversity loss, as once an animal ceases to appear in the wild, it ceases to be native.
Of course, this definition applies in the case of species-control powers, so I accept that it will be up to the environmental agencies when to use those powers. However, it would seem perverse to create a legal definition of “non-native” that could apply to species that return to our shores after becoming extinct, or that we wish to reintroduce. I am concerned that this definition could create a precedent or perhaps interfere with important future reintroduction programmes. Reintroductions help to enrich biodiversity in the UK, contribute to international conservation and improve people’s enjoyment of nature. Species that were once indigenous to the UK that have been reintroduced include capercaillie and short-haired bumblebees.
The second problem with the definition in the Bill is that it would define animals and plants listed in Part 1 or 2 of Schedule 9 of the Wildlife and Countryside Act 1981 as “non-native”. Why would that apparently define several species that are currently resident as non-native? The schedule was last revised in 2010. Part 1 lists:
“Animals which are established in the wild”,
and currently includes 67 non-native species that are considered invasive, such as the grey squirrel. However, it also includes nine species or birds that are indigenous, two of which became extinct in Britain but have been reintroduced: the capercaillie, which I mentioned previously, and white-tailed eagles. Birds such as the barn owl, the chough, the corncrake, the goshawk and the red kite were added in 2010. Amendment 64A would exclude indigenous species from the lists in Schedule 9, so species such as the white-tailed eagle would not be wrongly defined as non-native. Amendment 65A would simply add the words,
“and has never been indigenous to”,
to the definition of “non-native species”. Ecologically, “indigenous” refers to the presence of a species in a region as a result of natural processes, without human intervention. My amendment would therefore exclude from the definition of “non-native” animals that were once naturally resident in the UK and have at some point gone extinct.
Clause 16 seems to define as “non-native” several species that are in fact indigenous to the UK. There is an important principle at stake here: that species that have gone extinct, often because of human actions, should not subsequently be considered non-native. My amendments are intended to help to improve the definition of “non-native”, and equally would help the Government to commit to enhance the UK’s biodiversity, as they have promised to do on numerous occasions. I beg to move.
Lord Teverson
My Lords, I very much support my noble friend’s amendment, to which I have added my name. I was looking through Schedule 9 to the Wildlife and Countryside Act to see what sort of things were in it. There is everything from budgerigars to Egyptian geese, night herons and parakeets, so there is quite a bit there. The thing that struck me about the importance of this issue is that if we look at Cornwall not as a nation—which of course it is—but as a sovereign nation, its national bird, which features on its coat of arms with a fisherman and a miner, is of course a chough. It is widely known in Britain as the Cornish chough. Regrettably, it disappeared from Cornwall in 1947, but I am pleased to say that it reintroduced itself from Ireland in 2001 and since then has been fairly active in reproduction and has succeeded in west Cornwall. If we went back and passed this legislation in 2000 and looked upon Cornwall as an ecological area, we would now see the chough as an alien species, despite the fact that it is our national bird. I use that as a broad illustration of the issue. Having said that, it is an important issue. I absolutely support this part of the Bill and see this as a very important area.
We really should not mention Japanese knotweed, although that is in Schedule 9. If we are not allowed to talk about Japanese knotweed I could call it Polygonum cuspidatum.
This is an important area, but clearly animals and plants that have been part of the British habitat over a long period are native species and can return. We all know of important reintroduction programmes that have taken place. We should welcome them rather than outlaw them.
Baroness Parminter
I thank the Minister for those comments. It is encouraging that the comments from around the Committee show just how supportive we are for the initiative that the Government are taking.
The definition of non-native invasive species is key not just to what the Government are rightly trying to achieve here but to the impact that it could have on future reintroduction programmes. I hear the Minister when she says that we should not be opening almost a blanket pass for what are now extinct but were once indigenous species. Given that this, for me, causes some problems, I would certainly want some reassurances before we get to Report about the processes for assessing reintroductions. Clearly, we need to give species as much support as possible to meet our biodiversity targets. There are plenty of people who will argue against reintroduction and I would not want that definition to give those people any succour. If this definition is to stand, there must be a very clear process with which we feel comfortable for the assessment of reintroduction so that biodiversity can be put at the heart of that process. On the basis that the Minister has said that there will be a code of practice for us to scrutinise before Report, I am more than happy to withdraw the amendment.
Forestry: Independent Panel Report
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Baroness Parminter
My Lords, I, too, thank the right reverend Prelate for securing this debate today and for the important work of his Independent Panel on Forestry. It seemed a model in capturing the public’s mood and their undoubted love for woodlands and forest while, at the same time, achieving the difficult job of coming up with some very practical and workable policies which have secured the consensus of a vast number of stakeholders. I congratulate him.
Equally, I congratulate the Government on their response to this broadly welcomed report, with the majority of stakeholders supporting the commitment of the Government to increase our woodland cover from 10% to 12% with the long-term vision of moving towards 15% and keeping the publicly owned forests in public hands.
How we take this forward is key for the future. I hope that the Minister, in his summing up, will cover these three points. First, on the crucial issue of funding for forestry, we welcome the Government’s commitments during the current spending review period, but the independent panel and the Government see funding through the common agriculture policy as crucial to deliver on these forestry goals. The Government have been making a strong rural development regulation a priority in the ongoing CAP reform negotiations, pressing for more money for Pillar 2, as we need incentives to work with private landowners to deliver more woodland.
In the recent letter to the House of Lords Sub-Committee D setting out the result of the recent vote by the European Parliament’s Agriculture Committee on CAP reform, including the future of the RDR, the Secretary of State outlined that MEPs are not allowing the payment of income foregone for afforestation. Can the Minister offer some clarification on that and the impact that would have on incentivising and achieving the Government’s goal of increasing the amount of woodland cover to 12%?
Secondly, on delivery vehicles, we all look forward to the debate in this House when the Government bring forward proposals for the new operationally independent body to manage the public forest estate. Meanwhile, however, there is a question mark over the future of forest services. The Government say they will confirm the organisational arrangements through which the Government’s forestry functions will be delivered after the triennial review of the Environment Agency and Natural England. We expect the initial conclusions from that in the spring.
The Independent Panel on Forestry supports the retention of the Forest Service organisation. The Forest Service is a small organisation with fewer than 30 members of staff, but has a key role in promoting sustainable forestry and biodiversity. I therefore welcome that the Government are considering the synergies of function between the work of Natural England and the Forestry Service as part of the triennial review.
As someone who has real concerns about any proposals to merge the Environment Agency and Natural England, I am open to the potential of closer links or, indeed, merging Natural England and the Forestry Service to create one organisation with a strategic overview of all terrestrial landscapes and habitats.
The report of the Independent Panel on Forestry was clear that delivering landscape-scale conservation would require the integration of policy and delivery mechanisms for woods, trees and forests with the wider landscape, for example, by integrating incentives for woodland management and creation with agri-environment schemes.
It is also important that we retain a strong body of advice and expertise capable of influencing government on the delivery of a wide range of agendas where forestry has a decisive role to play, from areas across government as diverse as providing green space for public health to carbon storage.
Finally, on engaging stakeholders, the independent panel’s report rightly challenges stakeholders as to how we can all play our part in delivery. Post the report from Ian Boyd’s tree health and plant biosecurity task force next month, are the Government planning to resource any further stakeholder engagement mechanisms to aid implementation and ensure a sense of shared purpose? Are they looking at the merits of the old England Forestry Forum or the success of the Green Food Project as models to ensure that momentum is kept up and the outcomes we all want for forests are delivered?
Growth and Infrastructure Bill
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Lord Jenkin of Roding
I am tempted to follow the noble Lord, Lord Greaves, in his interesting excursion into these matters. The Government’s decision—which has of course now been accepted by Parliament—is that the NSIPs should not go to an IPA which is then able to make the decisions itself, because the IPA is not accountable to anybody. To have the IPA—or, as it is now, the inspectorate—simply making recommendations and the Secretary of State then making the decisions seems to me constitutionally very much better. I am not going to take this further.
When we were talking earlier about national policy statements, I stressed to my noble friend Lord Ahmad that I think the Government will quite soon have to think of a national policy statement for shale oil—for unconventional oil—because questions are now being raised in the House. They are being raised widely in the relevant community outside.
I do not know quite which world the noble Lord, Lord Greaves, lives in. I have been the recipient of a number of complaints about the difficulty firms have in making developments which seem to me to be absolutely essential, and indeed are so under the national policy. There was an incident in which I sought help for an electricity substation, for which it was absolutely necessary to bring ashore the product—the electricity— from what was intended to be a large offshore wind farm. I am not sure whether even that has yet been granted. I was the recipient of at least two complaints about the provision of underground gas storage. Again, people have an absurd idea of what these things may be. Those are the kind of big decisions, big applications, which have been seriously held up. I think therefore that it is absolutely right for an applicant to say that the application should be heard under the NSIP procedure.
There is also the different problem raised by Amendment 78B. This has been put to me by the National Grid, which obviously has very considerable experience of dealing with applications which may arouse a good deal of opposition. The case is a very simple one; it is in fact seeking consistency. Under the new proposals for commercial development, only the applicant is entitled to ask the Secretary of State to make a referral to the inspectorate, whereas for all previous applications the application can be made by anyone, in addition, of course, to the promoter. One must ask whether it is right that, concerning the new category of business and commercial project, only the applicant is able to refer. Why does this not apply to all the other bodies? The argument for consistency seems really quite overwhelming.
My noble friend Lord Attlee will remember that I raised exactly the same point when we were discussing the Localism Bill 18 months ago. He stated that,
“it may be that third parties with expertise in particular areas, such as environmental requirements, possess information which they think may elevate a proposed development from one of sub-national significance to one of national significance. It would not be right to prevent such bodies drawing this information to the attention of the Secretary of State”. – [Official Report, 17/10/11; col. 107.]
Well, that is an argument. However, he of course pointed out that that amendment would enable someone to draw key information to the Secretary of State’s attention if it has not already come to light. The Secretary of State can then of course direct that the matter goes direct to the inspectorate under the NSIP procedure. On that occasion I was trying to break new ground, but that is not the case under this Bill. As I said a few moments ago, under this Bill only the promoter can take that step in relation to business and commercial projects, and I am puzzled as to why. My amendment therefore simply seeks to bring all the existing applications into line with the new one for business and commercial projects. I hope that my noble friend will view this as a pretty reasonable request.
Baroness Parminter
My Lords, I support my noble friend’s contention that this clause do not stand part of the Bill. I will not repeat the questions raised by noble Lords, which I feel deserve an answer from my noble friend the Minister. I am sure that we will get answers, because she has shown herself throughout this process to be very open and willing to engage with us.
The one issue I would like to expand on a little further is that of fracking, and bringing that into the fast track process. The Minister rightly said that this is a developing area, and it is therefore important that this House has time to consider all the possible implications. Like the noble Lord, Lord Jenkin, and others, I think it is appropriate for the Government to introduce a national planning policy statement for this. As my noble friend Lord Greaves said, this is an important new area with major implications, particularly in the north-west. Given the scale of fracking and the Government’s commitment to press ahead with it, it would seem illogical not to give the Planning Inspectorate further clarity as it takes this issue forward.
The Minister said that there will be between 10 and 20 cases a year, a point raised by the noble Baroness, Lady Young. She cited evidence given by Friends of the Earth; I choose instead to cite evidence given to the House of Lords inquiry into EU energy policy last month, when Professor Jonathan Stern of the Oxford Institute gave his assessment of the implications of fracking in the United Kingdom. In the committee’s evidence session, Professor Stern stated:
“The US drills 45,000 wells every year of which 80% are fracked... people in Europe just do not understand the scale on which the drilling has taken place. In the future, it may be possible to reduce the scale of that drilling but I think what you can say is, if in any specific country you have drilled 100 wells, you may know something about the resource base. If you are going to produce shale gas on any scale, you probably need to be drilling somewhere between 300 and 500 wells a year, every year”.
I quote those figures because I think it is beholden upon my noble friend to answer—and I am sure she will do her best to do so—why the Government seem to think there will only be 10 to 20 cases emerging through this fast-tracking process if fracking is brought forward. There is a disparity which needs urgent clarification. Yes, it is a developing area, but if the Government are going to proceed with fracking, and take it forward as part of the energy mix in the short to medium term, then not only is there a case for a national policy statement, but there needs to be far greater clarity about the implications—particularly the resource implications—that would accrue for the Planning Inspectorate.
Baroness Hanham
I thank those noble Lords who have taken part in this rather interesting and short debate. I will try to pick up some of the matters raised, either as we go through or subsequently. Perhaps it would be helpful if I explain the Government’s rationale for Clause 24 and the reforms within it. As we have said on many occasions, one of the Government’s top priorities is to get the economy growing by creating the right conditions for growth. This includes ensuring that the planning system is operating in the most efficient and effective way. Clause 24 will support this aim by allowing developers of nationally significant business and commercial development to request to use the streamlined planning regime set out in the Planning Act 2008.
The noble Baroness’s Amendments 77A, 77B and 78A would remove the ability of the Secretary of State to issue a direction for prescribed forms of business and commercial development in response to a request from a developer. I have listened to views expressed that business and commercial planning applications should be determined by the local planning authority, and we have no difficulty with that. The Government agree that that is the right approach in the vast majority of cases. However, there will also be a small number of projects that will be of national economic importance and, in certain circumstances, it will be right that a decision on such proposals is taken at the national level by democratically elected Ministers.
We are not proposing that that should be a mandatory route for developers; it is optional. Developers of major projects will choose to request to use the infrastructure planning regime only if it offers other benefits which the local authority cannot provide, such as statutory timetabling—the noble Baroness asked me what it would be—and the one-stop shop, which will be useful where multiple consents are required.
Any request made to use the infrastructure planning regime will also be subject to the agreement of the Secretary of State, who will have to be satisfied that the proposed project is of national significance. Under Section 35(10) of the Planning Act, the Secretary of State is required to give reasons for his decision when making a direction, and that requirement is carried forward in new Section 35ZA(10) in Clause 24. That is why we cannot accept Amendment 77ZK, which is unnecessary.
My noble friend Lord Jenkin spoke to Amendment 78B, which would limit who can make a request that an application or proposed application for energy, transport, waste, water or waste water projects below the Planning Act thresholds should be directed into the nationally significant infrastructure planning regime. I understand why the amendment has been tabled and am sympathetic to its aims, but perhaps I may explain why we have set out a different approach in the Bill for business and commercial schemes.
The Planning Act sets specific thresholds for energy, transport, water, waste and waste water projects. Any proposal for a development which meets those thresholds must seek planning consent through the nationally significant infrastructure planning regime. Section 35 of the Planning Act allows a request to be made to use the regime for projects which are below the thresholds. We have not sought to limit who can make a Section 35 request for infrastructure projects as we recognise that other parties may hold information which could indicate that the project was one of national significance and should be directed into the regime. However, for business and commercial schemes, the Government have been very clear that for developers of major schemes this is an optional route. Therefore, the limitation on who can make a request is not there. We believe that it should be for a developer or applicant to determine whether the advantages of using the infrastructure planning regime outweigh the usual route of making a planning application to the local planning authority. The Secretary of State will direct a project into the regime only if he considers that it is of national significance.
Concerns have been expressed that if we do not accept the amendment the Secretary of State will be inundated with requests from third parties, or that there will be delay to the application being submitted or to the local authority decision-making process. We think that this is unlikely. We are aware of only a very small number of such requests having been made to date. The impact assessment states that the figure is likely to be between 10 and 20 a year. We will have to see how that works out.
If an application or proposed application is directed into the nationally significant infrastructure regime, this does not mean that local opinions will be ignored. Developers will have to consult local communities, and local authorities will continue to play an important role. The consultation requirements of the Planning Act, as noble Lords will know, are rigorous. Local authorities will also be invited to prepare a local impact report. The Secretary of State must have regard to the report as well as to other matters that are both important and relevant in making his decision on the development consent order application. The local plan, for example, is likely to be both important and relevant, as indeed is the National Planning Policy Framework.
It is essential that sustainable development should go ahead with the minimum of delay. That is why we have brought forward this new power. We also think that it is appropriate to have further public and parliamentary scrutiny on how this new power should be used. That is why we have consulted recently on the types of development and why the regulations that follow and prescribe the types of development will be subject to the affirmative procedure.
Other matters were raised. The noble Baroness, Lady Young, who tabled some of the amendments in this group, has had a letter from my honourable friend Nick Boles which I think addresses most of the questions that she raised, but I understand why she would want those responses on the record.
Growth and Infrastructure Bill
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Baroness Whitaker
My Lords, in speaking to this group of amendments, I declare my interest as president of the South Downs Society, which co-ordinates NGO representations to the South Downs National Park Authority. The risks to our national parks were well rehearsed at Second Reading and I do not propose to repeat them.
My noble friend Lord Judd and other noble Lords have tabled an amendment to delete Clause 8. I have a great deal of sympathy with that. On past history, the national parks have done much to facilitate broadband, and delays in its rollout have not been caused by them, as my noble friend Lord Adonis said in such comprehensive detail, but I sense a strong concern in your Lordships’ House about the rollout of broadband in rural areas. If the Minister is not persuaded that Clause 8 is unnecessary, I support my noble friend Lord Adonis in Amendment 59B to safeguard our national parks by restricting activity only to broadband, and my own amendment, Amendment 59C, to further protect our national parks by codifying the installation of any equipment with an opportunity for parliamentary scrutiny.
The Minister gave some assurances in her closing speech at Second Reading, but I think that more precision is needed. She also said that,
“it is absolutely vital to ensure that rural areas have broadband”.—[Official Report, 8/1/13; col. 107.]
As it is broadband that she is concerned with, she will surely accept that Amendment 59B makes it clear that these easements should be available only to procure broadband equipment, and if there is parliamentary approval for the response to the mandatory consultation, as the amendment provides, Parliament will have the opportunity to check that best practice is followed.
Amendment 59C in my name strengthens the proposal of my noble friend Lord Adonis in Amendment 59A for a statutory code by again bringing Parliament into the process of verifying best practice. The code would ensure that there is no postcode lottery for different national parks; all will have the standards of the best. It will make it easier for the installers of broadband equipment to plan and to have clear expectations from local authorities. It is also entirely right that Parliament, which passed the great 1949 Act setting up the national parks, should have the opportunity to consider fully and scrutinise any modification of its intentions via affirmative resolution.
These amendments set out minimum requirements from which we should not resile if we are to give out the pro-broadband message while preserving the essential nature of our most cherished national landscapes. I beg to move.
Baroness Parminter
My Lords, I support the deletion of Clause 8 and in so doing I thank my noble friends Lord Greaves and Lord Marlesford, and the noble Lord, Lord Judd, for joining me in this. The debate today is complicated, given that we are considering the Government’s proposed approach to deliver broadband to remote and special areas through new secondary legislation that was set out in a consultation published only last night, which they argue requires changes to be made to primary legislation as set out in Clause 8.
The first issue for the Committee to consider must be whether a case has been made for any legislative changes. The examples given by the Government in support of this legislative change do not, as the noble Lord, Lord Adonis, has said, demonstrate convincingly that national parks and AONB planning authorities are the barrier to delivering the broadband that rural communities want and rural economies need. The few examples of broadband planning delays cited are in areas outside national parks and AONBs. Indeed, the argument used in the Government’s consultation document to support changing the law is not that planning authorities in national parks and AONBs have been to date a barrier, rather it is the need to cut the costs of deploying broadband infrastructure to enable it to go as far as it can.
The second issue is whether the secondary legislation the Government want to introduce requires the proposed changes to be made to the primary legislation. Of particular concern in that regard is why there is a need to change the long-standing duties in national park and AONB legislation. I can see the argument to add a further consideration to the Communications Act 2003 for the Secretary of State to have regard to promote economic growth at the same time as other existing duties, which is what subsection (1) of Clause 8 proposes. This means that the Secretary of State would be obliged to consider the need to promote economic growth alongside and, crucially, give equal weight to, other considerations, which would include having regard to the need to protect the environment, and in particular to conserve the natural beauty and amenity of the countryside. However, I fail to see why the following eight subsections of Clause 8 are necessary to ensure that these pieces of legislation are consistent with the amended Communications Act.
I am not convinced that amending the Communications Act requires the disapplication of the duty to have regard to conserving beauty in other pieces of primary legislation. If this House is to accept changes to the legislation, the Minister must make clear the legal case for the necessity of such a disproportionate measure. It is a disproportionate approach, which not only sets a dangerous precedent for weakening the protection given to national parks and AONBs but creates the impression that the Government are intent on nibbling away at protection policies for our most valued landscapes and countryside; protection which has been in place since 1949. This approach makes the commitment in the recent National Planning Policy Framework to give great weight to conserving landscape and scenic beauty in national parks and AONBs sound very hollow indeed and is disproportionate, given that national parks authorities are not inflexible regulators, bystanders or obstacles to broadband rollout. National parks authorities are leading the development of local broadband programmes, with the New Forest National Park Authority supporting parish councils in a joint bid to Defra’s very welcome £20 million rural communications broadband fund and the Lake District National Park sitting on a Cumbria-wide steering group aiming to get superfast broadband coverage to 90% of the county, including the national park.
It is right that local planning authorities are involved in decisions which balance the need for broadband and countryside protection. Cabinets are big and intrusive—nearly two metres tall—and the noble Lord, Lord True, gave some excellent examples at Second Reading of insensitive siting. Efforts to camouflage cabinets green are wasted when operators such as Virgin and BT use them as advertising hoardings to promote their campaign that, “Fibre broadband is here”. In Guildford this week, Virgin Media is having to remove 200 posters on such street cabinets. Experience to date hardly suggests that operators are going to site in the least visible places, unless they are under some duty to consult. It is right that planning authorities work with providers to ensure that the effects on the landscape are minimised while delivering the economic and social benefits we need.
If the Government intend to regulate to temporarily remove the current requirement for communication providers to seek prior approval from local planning authorities in protected areas before permitted development can go ahead—that seems to be their direction of travel—I, too, would support a code of best siting practice between operators and local planning authorities to show how broadband undertakers should work with local authorities on siting. The Government’s consultation does not make it clear whether the code they propose is voluntary or mandatory. It should be mandatory, to give operators the certainty they claim they want in planning procedures and give local authorities the certainty that their legitimate concerns will be heard. As the Government seek to champion the speedy and cost-effective rollout of broadband to deliver economic growth, it should reflect on the need to ensure that the measures they propose do not unwittingly compromise the visual amenity of rural areas which underpin rural economies.
The impact assessment for this legislation and the Minister’s remarks at Second Reading make it clear that the Government have no idea of the number of overhead lines, poles and masts which could end up pepper-potting our most treasured landscapes if these changes go through. The cumulative visual impact of broadband infrastructure could have a chilling effect on the rural economy. Of people who were asked why they went to the Peak District, 85% said it was because of the visual appearance. However, the proposed regulations would leave broadband infrastructure siting at the discretion of the operator. It is crucial that the consultation period on the proposed regulations identifies the scale of infrastructure that rural areas may need to accommodate. Every step must be taken to ensure effective dialogue with local authorities about siting, or the cumulative effect of these changes could undermine rural tourism and local economies.
In that regard, it is worth reminding ourselves of the significant investment made by Ofgem and electricity distributors over recent years to enhance the beauty of treasured landscapes by burying overhead lines. They are doing this because local people recognise the value to local tourism and the economy of maintaining the visual amenity in their most precious landscapes. They have already spent millions removing 223 kilometres of overhead electricity lines and now Ofgem has given approval for £500 million of investment until 2021 to underground more lines. While electricity companies are working with local communities to protect valued landscapes from visual scarring and ensure that rural tourism can flourish, it would be inconsistent, to say the least, if government broadband policy allowed the insensitive siting of broadband cabinets, poles, lines and masts to disfigure the areas and undermine the tourism industry.
We all fully support the provision of broadband to rural communities, but this clause is a disproportionate response to deliver that. The clause should be removed and I hope that the Minister will use the time before Report to reflect on that, and on the merit of a statutory code of practice showing how broadband operators should work with local authorities on siting in protected areas and thus deliver the broadband that we and—crucially—rural communities and businesses want.
Baroness Parminter
Perhaps I may ask the Minister to address an issue that was not fully responded to in her reply—an issue which was raised by a number of Peers, including the noble Lords, Lord Adonis and Lord Cameron, and myself, namely the issue of statutory guidance. The Minister said that the Government expect the operators to abide by the code. For those of us who are concerned about this issue, we feel that it should be a statutory code. Bearing in mind the fact that the final siting will be at the discretion of the operators and that the operators have the ability to deploy new infrastructure if they believe that there is still merit in doing so, can the Minister confirm whether the Government intend for the code of practice to be statutory or voluntary?
Baroness Hanham
My Lords, I apologise for overlooking that. The proposal is that the code should not be statutory. It should be a code of guidance but not backed up by statute.
Localism Bill
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Baroness Parminter
My Lords, I rise to speak to Amendment 223D. As we know, this clause, which outlines that financial considerations can be material to a planning application, was added in the Commons as an incidental measure for clarification. As the noble Earl, Lord Attlee, indicated, the Government have argued that it is the new homes bonus that has necessitated such clarification. However, by using statute rather than the traditional route of guidance, the Government are undoubtedly creating further uncertainty.
The clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute. As such, the courts will be used to decide just what Parliament means by putting financial considerations up front as a material condition. While the government amendment goes some way to try to tackle that ambiguity, there still remains a lack of clarity about when such financial considerations could be considered material. Until now, case law has determined whether or not a financial consideration is material. Over time that has been determined as it being necessary to make the development acceptable in planning terms, directly related to the application and fairly and reasonably related in scale to the application. On Report in the Commons the Minister gave an example of materiality which related to a road scheme that accommodates a development—a direct link between the use of the money and making the application acceptable in planning terms. Further, in the Government’s response to the consultation on the new homes bonus in February this year, they stated that the new homes bonus could be lawfully taken into account as a material consideration,
“where there is a direct connection between the intended use of the Bonus and the proposed development”.
My noble friend Lord Attlee gave a useful example of such a direct link. However, this key point about the direct link is not made at all in the clause or the government amendment. This direct linkage is what case law has determined makes a financial consideration material, and it is a fundamental principle—to me at least—that guarantees the probity of planning. The Minister has made much of the CPRE opposing this clause. However, it shows skill on the part of the Government to unite the CPRE, TCPA and RTPI in opposing this clause and government amendment.
Without that clarity it can be read that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. It is just such a lack of clarity that the noble Lord, Lord Jenkin, rightly raised earlier when he talked about the changes around the use of the community infrastructure levy. It is quite clear that guidance will have to be issued to local authorities on how government incentives are intended to influence planning and how this will work in practice. If further clarification is needed on the relationship between financial considerations and considering planning applications, as the Government say it is, then cover that alongside government guidance about the workability of these incentives. That would avoid further legal wrangling over what Parliament intended to say by this clause. I beg to move.
The Deputy Chairman of Committees (Lord Faulkner of Worcester)
The House is debating government Amendment 223CA, with which Amendment 223D is grouped. Therefore the noble Baroness is not able to move that amendment separately.
Lord Reay
My Lords, this is a simplified version of an amendment which I moved in Committee. The idea behind it is to remove the right of the Secretary of State to overturn local planning decisions where these have been taken in accordance with the local development plan. Under the amendment, the Secretary of State would be able to overturn a local planning decision on appeal only where the decision had been to refuse permission for a development which was compatible with the local plan, or where the local authority had acted unlawfully, or where due process had not been followed. Where the local authority had refused permission for a development that contravened the local plan, the Secretary of State could not find in the developer’s favour on appeal.
The aim is to redress the balance in the planning process to a small degree, so that developers do not have an entirely unfettered right of appeal. This has led to powerful developers—or, in the case of wind farm applications, to developers with the intoxicating whiff of enormous subsidies in their nostrils—wearing down local authorities and local resistance by systematically appealing every decision that goes against them. By linking the rights of developers and the powers of the Secretary of State to the local plan, the amendment goes some way down the road that the Minister in another place once said he wished to follow, of making the local plan sovereign. The amendment would reduce the scope for developers to ram through unpopular proposals against the wishes of the local community as expressed in local plans. It has the support of the CPRE, which had a large part to play in its drafting.
I also strongly support Amendment 232ZB, tabled by my noble friend Lady Parminter, which would introduce a community right of appeal. This was the policy of both the Lib Dems and the Conservative Party before the last election. Since then, they seem to have invented the doctrine that it is the planning system that is responsible for the failure of the economy to grow faster than it has, and that nothing new must be introduced which could possibly provide a further obstacle to development. I do not think that my noble friend’s amendment is any different from the one she moved in Committee. She has been careful to circumscribe the circumstances in which an appeal can be made so that not any Tom, Dick or Harry can appeal whenever he likes.
I agree with the terms in which my noble friend has cast her amendment, with one exception. I am not convinced that whether an appeal can go ahead should depend on the position taken by the planning officer. In my noble friend’s amendment, the planning officer has to have recommended refusal of planning permission before any appeal against a local authority’s decision on the part of the local community can go forward. This seems to be too restrictive. But, even as it is, I would prefer the Bill to contain this amendment.
There is not much localism in the Bill now. Nothing would do more to restore meaning to the Bill than to reinstate into coalition policy a community right of appeal. Without it, the planning appeals system will remain most unfairly balanced in favour of developers. I hope that my noble friend the Minister will be sympathetic to these amendments, both of which advance the cause of localism. I beg to move.
Baroness Parminter
I rise to speak briefly to Amendment 232ZB in this group. A limited third-party right of appeal would provide stronger safeguards against planning applications which cut across local and neighbourhood plans. Such applications risk compromising the plan-led system and undermining public enthusiasm for taking a stronger role in plan making. As my noble friend Lord Reay mentioned, the Minister in another place has made statements about the importance of enshrining the primacy of the local plan. Granting a limited third-party community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. It could also help to ensure that local councils put sufficient weight on policies in a democratically agreed plan and, crucially, strengthen mandatory pre-application discussions for major developments introduced by this Bill.
Lord True
My Lords, I was not able to be present for this discussion in Committee. I would like to associate myself very strongly with the remarks made by both my noble friends because they are good localist arguments. Having campaigned in all integrity on the basis of the promises that were put forward by my party in respect of a community right of appeal, like many colleagues in the Liberal Democrat party I remain in a state of puzzlement as to why this worthy and desirable policy, very sensibly circumscribed in the amendment spoken to by my noble friend, has disappeared. It is something that some of us will want to return to on a future occasion, and I hope sincerely that the leadership of my party and that of my fellow party in the coalition will think again on this matter.
Localism Bill
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Baroness Parminter
My Lords, as someone who passionately believes in the potential of planning to deliver sustainable development, I was very happy to add my name to the amendment. It is particularly helpful that the amendment spells out the depth of field covered by those who will have responsibility for planning to promote sustainable development. Those individuals, bodies and authorities need guidance on what the Government mean by sustainable development. Yes, a belief in localism means giving local councils the power to articulate their visions of sustainable development for their areas through their local plans, but in the absence of a clear vision from the Government, it is imperative that they define clearly and upfront what sustainable development means in order to determine the expected route of travel.
I support my noble friend in arguing that it is right to give a legal underpinning to the definition of sustainable development that is found in the UK Sustainable Development Strategy. Its five widely accepted principles provide a common framework for sustainable development and establish the twin goals of living within environmental limits and providing a just society by means of good governance, sound science and a sustainable economy.
The crucial thing is that the definition has widespread understanding and support. Only last year, 97 per cent of respondents to a Defra consultation exercise supported or did not object to the particular definition of sustainable development used in the 2005 Sustainable Development Strategy. Restating the principles of sustainable development as outlined in that strategy would make it clear that there is no hidden agenda by the Government to redefine sustainable development. I echo the comments made by the noble Lord, Lord Deben, but some of the comments by Ministers have been less than helpful in determining exactly what the Government mean by sustainable development. Therefore, reiterating a position that is commonly understood and has been widely supported in recent consultations would suggest that the Government are serious about sustainable development and are not seeking to redefine the terms of the argument.
The Prime Minister himself recently gave an assurance that the purpose of planning is to balance the environmental, social and economic dimensions of sustainable development. Accepting the amendment would allow that assurance to be delivered.
Lord Howarth of Newport
My Lords, not having participated in proceedings on this Bill hitherto, I hope that the House will none the less tolerate me in making a very few remarks in response to what I have listened to this afternoon. It is desirable that the definition of sustainable development should be filled out, not least because of the suspicions that many people currently entertain in this country that sustainable development is no more than a euphemism for development at all costs.
I know that that is not the Government's intention but that is unfortunately the impression that has gained some currency. It would be desirable to fill out the definition in order to reassure people and in order to provide better clarification and guidance for planners and would-be developers as well as for the communities that would be affected by the development.
We should be grateful to the noble Lord, Lord Greaves, for having tabulated so many of the components of sustainable development in an appropriate sense. I agree also with the right reverend Prelate that, however we formulate this, it ought to be clear that the spiritual dimension of our human existence is something that is to be supported and sustained in this process of sustainable development. I am also attracted to what my noble friend Lady Andrews had to say about incorporating references in appropriate wording on cultural and heritage matters. One might also add that it would be desirable for a definition of sustainable development to incorporate language relative to design, and that it should stress the importance of good design processes in achieving sustainable development.
I think that what I am saying illustrates that we are not yet in a position to agree on a definition of sustainable development, other than in the succinct—perhaps too succinct—Brundtland definition, which the Government use in the draft national planning policy framework. I am also wary about incorporating rhetoric and aspiration in legislation. It seems to me that our legislative tradition in this country is to be as specific as we can about legislation, to enable the courts to interpret it in a practical and expeditious fashion.
I agree also with the warning uttered by the noble Lord, Lord Deben, that if an elaborate definition is placed upon the Bill, there is a danger that it will be almost an invitation, if not a challenge, to litigants to try to exploit it, whether their intention is to prevent or promote development—although the former is more likely. If the practical upshot is that development would be quite seriously inhibited by placing a more complex definition of sustainable development on the Bill, then perhaps we should be very careful indeed about doing that.
It seems to me, therefore, that if we are to fill out the definition, the right place to do this would be in the national planning policy framework itself, which is the gloss upon the Bill. This is the document that explains and interprets to the lay person, and all sorts of practitioners, the policy of the Government and what they seek to achieve through this legislation. Again there are difficulties, partly because there is not yet a sufficient consensus about how to define sustainable development. At least if you have a national planning policy framework, it is possible to update it from time to time without having to resort to all the processes of primary legislation.
Even if we put a complex definition into the national planning policy framework, that may still make the process more susceptible—too susceptible—to litigation. It depends upon the legal standing of the national planning policy framework, but I think that it does have some sort of legal status. So, I just counsel caution about this. I really do counsel caution about trying to place a satisfactory definition on the face of the Bill, and I think that we should even be rather cautious about trying to elaborate the advice given—the guidance—in the national planning policy framework.
Localism Bill
Baroness Parminter Excerpts(13 years, 4 months ago)
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Lord Jenkin of Roding
My Lords, my noble friend Lady Hamwee has put a very convincing case. Like others, when I received a flood of representations from a number of environmental and other bodies that the clause opened the door to buying planning permission, I thought to myself that that cannot be right. I looked into it and, of course, I found that the provision is really intended to be a restatement and clarification of existing provisions. I shall not repeat what my noble friend has said about the Town and Country Planning Act 1990 and her reference to any other material considerations.
In his absence, I say to my noble friend Lord Greaves, who has taken a great deal of time during the passage of the Bill to put his views to the House, that I think this is a brilliant amendment. It exactly meets what we want to say. We need a restatement of the law and it would not surprise me at all if my noble friend indicated that that was the legal advice which the Government have had. However, it is right to say that finance is no more material than any other consideration that a planning authority has to take into account. I would be perfectly happy with the clause if amended in this way.
My noble friend Lady Parminter’s opposition to Clause 124 standing part forms part of the first grouping on the list and I thought, “Gosh, this must be important”. I think this matter has been blown out of proportion. Nothing in this suggests that planning permission can be bought and sold. Other provisions, which we discussed earlier, such as the community infrastructure levy, the whole question of Section 108 and various other measures, are all important planning considerations. As I understand it, this clause with the amendment is exactly what the House should want. I very much support it.
Baroness Parminter
My Lords, I oppose that Clause 124 stand part of the Bill. My noble friend Lord Jenkin was kind enough to reflect on the fact that I gave notice of this matter only because I think it is important, and it remains an important issue. This clause outlines the fact that financial considerations can be material to a planning application and it was added on Report in the Commons. The Minister then said that,
“it is an incidental measure for clarification”.—[Official Report, Commons, 17/5/11; col. 271.]
Frankly, why is such clarification needed in statute?
As my noble friend Lady Hamwee has stated, the test for establishing what considerations are material in planning have developed from case law, not statute, since 1947. The classic statement is found in the 1970 case of Stringer v Minister for Housing and Local Government, which makes it clear that any consideration which relates to the development of land is capable of being a planning consideration. Accordingly, there is no legal or policy restriction in place that forbids financial considerations from being taken into account in relation to judicial decisions on planning applications. Indeed, over time, the courts have asserted that a range of particular financial considerations can be taken into account.
However, as this clause stands, it threatens the probity of planning. It sends a message out to developers that under this new planning system, which relies heavily on incentives—not top-down targets—to secure development, such planning permissions can be bought and sold. This concern has a long history. In 1997, the Nolan committee’s report on the standards of conduct in local government made it clear that the Government should consider whether the present legislation on planning obligations is sufficiently tightly worded to prevent planning permissions from being bought and sold. A key principle of planning has been that applications are decided on their planning merits, which can already include financial considerations, as my noble friend Lady Hamwee has said. Many of us who are or have been councillors will be only too familiar with Section 106 and other planning obligations where funding is used to make an otherwise unacceptable planning application acceptable in planning terms.
However, this clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute, and it can be read as meaning that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. As such, it is a fundamental and deeply damaging change to the planning system.
If further clarification is needed on the relationship between financial considerations and considering planning applications, then the way to achieve this is by drawing up guidance for local authorities, not through primary legislation. The probity of the planning system is crucial, and is indeed vital if we are to achieve community buy-in to sustainable development, and meet the housing needs that we know are out there in our communities.
This clause threatens to bring the planning system into disrepute, and should be withdrawn.
Baroness Parminter
“Community right of appeal
(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 70 (determination of applications: general considerations)—
(a) in subsection (1)(a), after the first “subject to” insert “subsection (2A) and”,(b) after subsection (2) insert—“(2A) Where the planning authority decides under this section to grant a permission for an application which falls within one of the categories, and meets any of the conditions specified in section 78(2A)—(a) in case where no appeal is lodged against the decision, it shall make the grant as soon as may be specified in a development order after the expiration of the period for the lodging of an appeal;(b) in case where an appeal or appeals is or are lodged against the decision, it shall not make the grant unless, as regards the appeal or, as may be appropriate, each of the appeals—(i) are withdrawn, or(ii) are dismissed by the Secretary of State.”(3) In section 78 (appeals to the Secretary of State against planning decisions and failure to take such decisions) after subsection (2) insert—
“(2A) Where a planning authority grants an application for planning permission, and—
(a) the authority has publicised the application as not according with the development plan in force in the area in which the land to which the application relates is situated; or(b) the application is one in which the authority has an interest as defined in section 316;certain persons as specified in subsection (2B) below may by notice appeal to the Secretary of State, provided any one of the conditions in subsection (2C) below are met.(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified in subsection (2A) above are—
(a) a ward councillor for the area;(b) any parish council covering or adjoining the area of land to which the application relates; or(c) any overview and scrutiny committee for the area.(2C) The conditions are—
(a) section 61W(1) of the Town and Country Planning Act 1990 applies to the application;(b) the application is accompanied by an environmental impact assessment;(c) the planning officer has recommended refusal of planning permission.”(4) In section 78, after subsection (4D) insert—
“(4E) For appeals lodged under subsection (2A), a notice must be served no later than 28 days from the date of notification of the decision.”
(5) Section 79 is amended as follows—
(a) in subsection (2), omit “either” and the words after “planning authority” and insert “or the applicant (where different from the appellant)”;(b) in subsection (6), after “the determination”, insert “except for appeals as defined in section 78(2A) and where the appellant is as defined in section 79(2B)).””
Baroness Parminter
My Lords, Amendment 170CC introduces a community right of appeal, which delivers two things that this Government are committed to. The first is devolving powers to local communities. In this Bill, the Government are right to create greater opportunities for local neighbourhood planning. However, if the Government accept the importance of local people having a direct say in the planning of their communities in their environment, how can it be right for local people to have no redress when a planning application is approved that drives a coach and horses through everything that has been agreed?
The second objective is enhancing the primacy of the local plan. The Minister in another place has made statements about the importance of enshrining the primacy of the local plan. On Report, he confirmed that the reforms were all geared towards making the plan prominent and indeed sovereign. Granting a limited community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. To be clear, it is a limited right of appeal for the community that I am proposing. It is limited as to the conditions under which it can appeal, principally if it is not in line with the agreed local plan, although also if an authority grants an application in which it has a financial or other interest. It is also limited as to who can apply—that is, members of the local community through their elected representatives—and limited in time, with 28 days to lodge an appeal to minimise delay and uncertainty.
Critics have argued that granting a right of appeal to communities will slow down the planning process, but limiting the right of appeal minimises any delay. Recent government figures make it clear that the number of so-called departure applications are extremely small—8,000 out of more than 6 million planning applications in the past decade, or 0.15 per cent. It could also help to ensure that local councils put sufficient weight on policies in the democratically agreed plan and strengthen mandatory pre-application discussions for major developments introduced by the Bill. Indeed, in New Zealand, where such an appeal right exists, it acts as a powerful incentive on all parties to focus on pre-application discussions.
A limited third-party right of appeal was a manifesto commitment of both coalition parties. Introducing one would help to make a reality of the goals of this Government to build public faith in decision-making and encourage participation in the planning process. It would also help to make the local plan sovereign. I beg to move.
Baroness Parminter
I thank my noble friends for making powerful contributions in support of the case for a community right of appeal. I take some comfort from the words of the Front Bench and I will over the summer use all the endeavours that I have at my disposal, and those of my colleagues, to press the case for delivering what the Government want to achieve in terms of helping people to have a powerful say in local planning and decisions that affect their lives. In view of the time, I beg leave to withdraw the amendment.