Levelling-up and Regeneration Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

However, if the Government are determined to tidy up this instance of duplication, I hope my noble friend will find my amendment a helpful and simple solution. It would ensure that environmental outcomes report regulations can replace habitats regulations requirements only if they are functionally the same. This would take away any risk that a future Government would weaken these essential environmental laws, while clarifying the Government’s intention to reduce duplication. I hope my noble friend will agree to this simple solution.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Randall of Uxbridge, and I am sure the entire Committee will join me in saying that we are delighted to have him back with us. I also commend the noble Baroness, Lady Hayman of Ullock, for the huge amount of work that has gone into this. So much is having to be filled in from the Opposition Benches and indeed the Back Benches on the other side, because this is such a skeleton Bill.

We have not only a shortage of birds, mammals and insects, but we are running into a shortage of Henry VIII metaphors. We have Henry VIII on steroids with rockets strapped to his boots—I have run out of additions to that one. The Bill as before us now would put into law an extreme right to Ministers to do whatever they would like. It is interesting to be having this debate in the context of the just-completed Report of the retained EU law Bill, because then your Lordships’ House expressed very clearly a desire to see non-regression in environmental regulations, but we need amendments such as these to the Bill to deliver the will that the House has expressed.

This group also made me think of debate on the economic crime Bill, where we were recently discussing the issue of freeports. There is a great deal of fear and concern in the community that these are places of open slather, where businesses will be allowed to do whatever they like and destroy whatever they like, where all the rules are taken away. As the Bill is written, that is what environmental outcome reports will effectively be doing: taking away EU-derived protections and leaving nothing written down in their place.

I will not run through it in detail, but if any noble Lords have not seen it, I point them to Wildlife and Countryside Link’s excellent report going line by line through a number of the amendments and explaining their importance. I pick out a couple of points. Amendment 372 concerns the climate. As the noble Baroness, Lady Hayman, said, we are in a climate emergency, and how can that be missing from this crucial Bill? We are supposed to be talking about a levelling-up Bill. These changes to environmental protection around the country seems a long way from levelling up, but that is where we are. If we think about the protection of nature and the impact of the lack of nature on public health, people’s well-being and communities, it is of particular interest to communities generally seen to be in need of levelling-up support.

I particularly pick up one element of Clause 141: the fact that it destroys the mitigation hierarchy. The environmental mitigation hierarchy starts with “avoid”: do not trash things in the first place. We are one of the most nature-deprived corners of this battered planet and should be absolutely avoiding environmental damage. At the moment, we are doing the opposite. I think of how often my social media feed and my email queue are full of desperate people saying, “How can we be cutting down this ancient tree to build one house?” or, “How can we be destroying this hedge when, with a bit of initiative and creativity, we could leave the hedge and build some houses as well?” There is so much we are not doing, and the way the Bill is written allows open slather to that.

I just note one point on Amendment 388, which introduces a super-affirmative procedure for regulations. It is an inadequate backstop: it is a backstop, but not nearly good enough. We need to write the essential protections into the Bill. That would mean that the Committee is following the desire that the House expressed at Report on the retained EU law Bill.

[Lord Lansley (Con)]

My Lords, I will speak to three amendments in my name in this group: Amendments 378A, 378B and 386A. They are designed to try to ensure that this part of the Bill works effectively, and I hope will be regarded as helpful by my noble friend on the Front Bench. Not everything I have had to say has always been helpful, but I hope this is—it is all intended to be helpful, of course.

I remind the Committee of my registered interest as chair of the Cambridgeshire Development Forum. In that context, members of the forum from BDB Pitmans helped me with the construction of these amendments. Amendment 378A relates to Clause 142(3), which provides for informing the public and for “adequate public engagement” to take place in relation to the exercise of functions under this part. The effect of this new provision could be to extend public consultation requirements to the exercise of permitted development rights, because of the use of “proposed relative consent”. These are consents.

The present situation does not require such consents to be the subject of such a consultation requirement. In the legislation as it stands, adequate public engagement does not imply no public engagement. This would therefore increase the burdens on utilities, for example, in exercising a consent for a permitted development right in relation to telecommunications, highways, rail, et cetera. Amendment 378A would enable the Secretary of State to disapply the requirement where it would impose a disproportionate burden on development. Alternatively, page 174 mentions

“proposed relevant consent or proposed relevant plan”

in relation to “adequate public engagement”. If “proposed relevant consent” was replaced with “EOR regulations”, it would serve the purpose perfectly well, and save the problem that might otherwise arise.

Amendment 378B relates to Clause 142(1) on non-regression. It is a pleasure to welcome back to his place my noble friend Lord Randall of Uxbridge. We have heard from him about the

“overall level of environmental protection”.

This is defined by reference to the European Union law when this Act is passed. My Amendment 378B would enable the Secretary of State to take into account, in exercising this responsibility to maintain the level of environmental protection, any urgent need for energy resilience. It is worth remembering that Section 20 of the Environment Act 2021 provides for environmental legislation to be introduced with a statement that

“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.

There is then in that section a statutory provision enabling the Secretary of State to make

“provision that is different from existing environmental law”

and

“might provide for the same or a greater level of environmental protection”.

Why then is there no equivalent provision in relation here to the making of EOR regulations? The inflexibility of this provision is particularly illustrated by the prospect in the European Union of the introduction of a streamlined environmental assessment process for low-carbon technologies. I have reflected this in the phrase

“urgent need for energy resilience”.

This would enable Ministers to take account of such a process to advance low-carbon technologies and not be tied specifically to a level of environmental protection defined by current environmental law. I encourage my noble friend to consider either my amendment or something similar to the provision in Section 20 of the Environment Act 2021.

Amendment 386A refers to Clause 150, which makes the consequential amendments to this part. It is about the proposed repeal of Section 71 of the Town and Country Planning Act 1990, which is what provides for environmental assessments. As it stands, that section will be repealed two months after this Bill passes into law. Existing environmental impact assessment regulations will then subsist from that moment until such time as the EOR regulations can be made, following the entry into force of those regulations.

But how long is the gap? How long will it be between this Act coming into force and the making of the EOR regulations? It could easily be well over a year and possibly two. For the greater part of that period, no power would remain to amend the environmental impact assessment regulations, pending the environmental outcomes reports regime. The EOR power is not able to amend the EIA regime until that stage.

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Recent rumours, suggestions and stories suggest that the Government are now thinking again and may, at best, propose an extension to the deadline rather than its elimination. To that, I reply that I have been in this House long enough to know that, when half a loaf is available, you should take it. However, such a decision does not help to resolve the basic reason for the delay, which is the inability, incapacity or unreadiness of local authorities to process the applications already made. The Ramblers, other interested voluntary groups and, indeed, individual walkers such as myself have no power to influence events. They watch powerless from the sidelines as this valuable national asset is put at risk. Surely, to remove the cut-off date and end this suspense would cause no real difficulty. I therefore look forward to hearing from my noble friend the Government’s considered response.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hodgson of Astley Abbotts, and to continue the trend of the afternoon of unusual coalitions across your Lordships’ House after my noble friend Lady Jones agreed fervently with the noble Viscount, Lord Trenchard, on the last group. I entirely agree with everything that the noble Lord just said. I also very much agree with the two initial speeches in this group on Amendment 387, to which the Green group would have added our backing if there had been space. In the interests of clarity and making progress, I will constrain myself to speaking to four amendments: Amendments 467H to 467J in the name of my noble friend Lady Jones of Moulsecoomb —she unfortunately cannot be in your Lordships’ House because she has had to dash off to an emergency dental appointment; I think that we all feel her pain—and my own Amendment 480.

I have a slight structural problem in that those first three are amendments to government Amendment 467G, so I shall try to explain the situation—I hope the Minister will forgive me if I cross over some ground on the government amendment as well—and then briefly set out the details. The background is that maps of access land show people where they are allowed to exercise their current very limited right to roam in England. Public access to these areas of mountain, moor, heath and downland are mapped according to criteria drawn up by Natural England. These maps were published in 2004. The Countryside and Rights of Way Act requires them to be reviewed every 10 years, so this review should have happened in 2014. Then—we are back to the issue of deadlines—the Government extended that deadline by another 10 years and are now seeking to extend it to a full 25 years after the maps were first produced. The first maps took only four years to produce, so why is there this delay in updating them, especially in the light of the Government’s commitment to ensure that everyone lives within 15 minutes walking distance of a green or blue space?

The Government admitted in the other place that

“not all downland was mapped satisfactorily”.

This concession proves what organisations such as the Ramblers have said for a long time: there are areas of the countryside where people should and do have the legal right to roam but are wrongly prohibited from exercising that right because of the failure of the maps. The organisations that have been working on this issue have extensive lists of mapping errors and omissions, many of which have been recognised by Natural England but cannot be corrected until the mapping review takes place. Examples of this span from Cumbria to Northumberland, Somerset to Sussex.

Another failure in the current maps is that there are access islands, where the public have a legal right to roam but no legal means to access the land. Unless you can parasail yourself down into it, there is no way of getting there. These valuable recreation spaces could be opened up and connected to the access network. One example is Letcombe Bassett in Oxfordshire. The mapping review could also open up more downland, particularly in southern and eastern England, which has much less right to roam than upland areas. For example, only 0.6% of land in Kent has a right to roam, compared to 72% of the Peak District.

This mapping review might also open up access to waterways and woodlands, such as the majority of Forestry Commission land that has been voluntarily dedicated as open access land. This could open up access for a good half of the population who do not have it now. The need for a mapping review is clear, as it will give more people rights to access incredible nature sites. Given that it took only four years to do the original mapping, it is nonsense that it should take almost eight more years for the first review to be completed.

The government amendment seeks to remove the duty to conduct further reviews after this one—it will set things in stone when this final review is done and that is it. This looks like an exercise in the Government removing a statutory duty that they have continually failed to deliver, rather than having any real justification. These reviews should be regular and seek continual improvement, because there will of course be mistakes that are not recovered until after the next review. Noble Lords can read the details for themselves but, very briefly, Amendment 467H would allow five years instead of seven to complete the mapping review, Amendment 467J would allow extra rights for appeals and Amendment 467I would allow for a continuous review process. Those are the amendments in the name of my noble friend.

I come now to Amendment 480 in my name. It is interesting that it is very rare that the two Houses are talking about the same issue at the same time: my honourable friend Caroline Lucas had a debate today in the other place on the right of access to nature, which is fitting for these issues that people are very concerned about and which are very much at the forefront of the public’s mind. This Bill gives us the opportunity to address them.

My amendment is a “Let’s have a review” amendment. Noble Lords may say that this is a sign of your Lordships’ House modifying my instincts and making me look for a middle way, which goes entirely against my instincts. In September 2021, when we were debating what is now the Environment Act, I put down an amendment that said: “Let’s have a right to roam in England”. That is still where I want to go, but I am looking for others to back me and ways in which we might make progress in your Lordships’ House, so all this amendment does is say: “Let’s have a review in England about people’s right of access to nature”. Let us not forget that in Scotland, people have the right to roam over most of the countryside: not in front gardens or gardens, not in places growing crops or where you will do damage, but otherwise you can go where you will. By contrast, in England 1% of the population owns half the land—quite a few of them are very familiar to your Lordships’ House—and the other 99% have the right to roam on just 8% of the remainder. My noble friend’s earlier amendments would marginally improve that situation; this is looking for a really big improvement.

I will not talk at length, as I am aware of the time, but I have three quick points on the benefits we could all see from a right to roam. I was at an event this morning where the Rural Policy Group released its annual Sustainable Food report, and we were talking about citizen science, which the Minister was just praising in wrapping up the previous group. We were also talking about the internet of things; someone said how brilliant it would be if we could plant electronic sensors all over the countryside. Someone pointed out that we would have to really fix rural connectivity to the internet before this would go very far, but we could use those electronic sensors to map the numbers of dragonflies, certain birds or butterflies. Of course, if we had a right to roam, we could also have groups of citizen scientists roaming around the countryside doing that mapping for you at considerably lower cost and without all the issues around electronic technology.

Also on the Environment Act there was a great deal of discussion about litter. Much of the litter in the countryside is blown or washed there, and people exercising their right to roam can clean some of it up. Undoubtedly, the biggest argument of all is the issue of public well-being and public health. We know so much now about the need for public health to improve, and we know that the right of access to nature gives that improvement.

[Baroness Scott of Needham Market (LD)]

My Lords, I support and shall speak very briefly to Amendment 471 in the name of the noble Lord, Lord Hodgson. It is really important to recognise at the outset that his amendment is about one specific thing. It is not about the merits or otherwise of public access; it is about the future of the estimated 40,000 miles of historic public rights of way that were omitted from the definitive map in 1949 because the mapping was done in a great hurry. It is not about creating rights that have not previously existed; it is really important to recognise that.

I have form when it comes to public rights of way. For a decade, I chaired Suffolk County Council’s rights of way committee and have spent many happy hours looking at public map modifications and all the things that go along with that. These things are very time consuming, and there are a number of reasons why. One is the complexity of rights of way law. I do not think we are ever going to tackle that, because it would be really difficult to know where to begin; it has been built up over so many decades and centuries and it is a very complex area of law.

There is also the matter of the historical record and the time that needs to be spent going to the Public Record Office, looking at tithe maps and other documents and so on to get an understanding of whether something is or is not an historic public right of way. That is important because, in highway law, when something has once been a highway, it will always be a highway until there is a legal Act to stop it. There are some very lengthy statutory processes. All these add up to a huge demand on local authorities, which have less capacity than they did back in my day. Finally, there is the capacity of the Secretary of State and the appeals process. All these mean that every claim takes a long time to process.

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[Lord Benyon (Con)]

I thank my noble friend. He and the noble Baroness made very important points, but this is a question of resourcing and of prioritisation in local authorities. Of course, some local authorities are inundated and others are less so. It is about supporting them to register these rights of way. I will work with him and all interested noble Lords to make sure that we assess how this is going against the new timescale.

Amendment 475 would have the effect of permitting the right to wild camp on open access land. The Government understand concerns about the ability to wild camp in Dartmoor National Park, as raised by the noble Baroness. As a result of the local court judgment, this has come into much clearer view for the wider public. Private Members’ Bills in the other place also seek to make similar legislative amendments to those proposed here.

For the record, it is worth saying that Dartmoor has never banned wild camping: there was just never a right to it. It is a question of which end of the telescope you look at this issue from. There was what I thought was a very fair report on “Countryfile” a few weeks ago, which gave the perspective of both those who want that access as a right and those who very often end up clearing up the mess from the small proportion of those who act irresponsibly and damage our natural environment. The amendment would have negative impacts, including potential legal conflict and complexity surrounding the rights of private landowners, concerns about health and safety and the liability of landowners, and the risk of damage to the natural and historic environment.

Amendment 480 requires the Government to review recreational access to land and open access land. The Government are already required by law to complete a review of open access land under the Countryside and Rights of Way Act 2000, and the next review is due by 2024-25. We will consult on extending the rights to open access land after having completed the review of our existing maps of open access land; this point was raised by the noble Baroness, Lady Bennett. I understand the point that she raised, and I have been active in providing access to land close to where a lot of people live. I understand the tensions and problems. Much can be done by good joint working between land managers and the people who wish to use it. I am very happy to continue that debate.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for giving way. I have a point of clarification. The term “recreational access to land” may have been interpreted as meaning open access land. This amendment is meant to mean all land, not just open access land, and I think that the way it is written shows that.

[Lord Benyon (Con)]

I understand the campaigning point that the noble Baroness makes. That is perhaps for another occasion in this House; I am very happy to have that debate. I want to see more access but, over the next six years, the recovery of species in this country has to be our priority, as there has been a catastrophic decline. We have to work with people to give them more access where it is appropriate, but we also have to protect our countryside and rare habitats and make sure that hotspots of biodiversity are allowed to thrive, because the benefits from those will spill out right across our country.

Amendment 504GJC, so ably spoken to by my noble friend Lord Lucas, enables local communities, landowners and organisations to contribute directly to the 30 by 30 target through an internationally recognised structure—namely, the other effective area-based conservation measure. We understand the intentions behind this amendment. I provide reassurance that, as I said earlier, the Government are committed to protecting 30% of land for nature by 2030 and to developing the most appropriate approach to increasing and enhancing our protected areas and other land of value to nature.

We are working with partners across the country, including members of the public, the environmental sector, academics, farmers, landowners and the private sector, to deliver against this commitment. The nature recovery Green Paper sought views on our approach to 30 by 30. This included our plans to explore how land that is delivering for biodiversity outside of our designated protected areas can contribute to our 30 by 30 target. Many of the reforms explored in the Green Paper have fed into the Government’s environmental improvement plan, our delivery plan for protecting nature. The noble Lord is absolutely right to raise these points. More areas will be developed for nature as part of our reforms, and I very strongly believe that these should be included in our 30 by 30 calculations.

Government Amendments 467G, 504O, 509E and 515 address the requirement for Natural England to review the maps of open access land in their entirety at set intervals, with the first review currently due to be delivered by 2024-25 and subsequent reviews to be completed every 20 years following this date. These amendments allow Natural England to complete proportionate reviews, focusing on areas that were mapped incorrectly or have changed status, on an ongoing basis. While much open access land is already mapped correctly, some mistakes were made during the initial mapping process, and a first review of these areas is required to establish an accurate baseline. The amendments do not remove the first review deadline completely but move it to 2031 to allow for sufficient preparation of the review.

As I have said, we recognise the importance of enabling access to the countryside. That is why we have established 13 community forests, alongside substantial programmes to create more green open space and significantly expand national trails. We have also created and restored some 360,000 football fields of habitat since 2010. Our response to the Glover recommendations made clear that we will not consider whether CROW rights should be expanded until the review of the CROW maps is complete. Our stakeholders have been clear that reviewing the maps is a necessary first step before any consideration of expanding rights can be made. Once the first review is completed and a baseline established, the amendments will enable us to move to a continuous selective review system. Any changes in land use can be amended on the maps in good time rather than needing to wait up to 20 years for further review.

Amendment 467G inserts a new provision into the Countryside and Rights of Way Act 2000 regarding when Natural England must carry out reviews following the issuing of open access maps, and the matters that such a review must cover. The amendment also makes provision for regulations to set out the procedure on a review and makes consequential amendments.

I hope noble Lords will support these important amendments. A substantial amount of planning is required if we are to ensure that the reviewed maps are fit for purpose, so that we can then switch to a system of limited continuous review rather than the periodic reviews required at present. Amendment 467H would reduce, by three years, the time we have to make sure that the first review of maps is completed to the standard needed. The Government have tabled amendments which remove the scope for regulations to push back the deadline for the review, so I offer the noble Baroness assurance that this date will not move again.

Amendment 467I would insert a legal requirement to make regulations to enable subsequent reviews of the open access maps. Once the Bill has achieved Royal Assent, the Government intend to make regulations to enable a continuous review following the completion of the first review, which I hope will reassure the noble Baroness that the ability to do this will not be lost.

Amendment 467J would take the opposite approach of the government amendment by returning to the existing power to invoke the original appeals regime so that it applies to the review process. The Government feel it is important that we have the flexibility to fit the details of the appeal regime to the very different circumstances of the review, and therefore do not feel able to support this amendment.