Housing and Planning Bill

Baroness Parminter Excerpts

Wednesday 23rd March 2016 Lords Chamber

Moved by

[Baroness Parminter]

103C: Clause 179, page 93, line 21, at end insert—
“( ) a right, easement, restrictive covenant, covenant, liberty or privilege in respect of land belonging to the National Trust for Places of Historic Interest or Natural Beauty (“the Trust”) which is held inalienably, within the meaning of section 18(3) of the Acquisition of Land Act 1981 (National Trust land held inalienably), or( ) a restrictive covenant held by the Trust, within the meaning of section 8 of the National Trust Act 1937 (power to enter into agreements restricting use of land).”

[Baroness Parminter (LD)]

My Lords, in the absence of the noble Baroness, Lady Andrews, who has a long-standing engagement in Cardiff, I rise briefly to move this amendment. The Government have said that the clauses are intended to aid regeneration projects on brownfield sites through allowing covenants, easements and other rights to be overridden more easily by public bodies. However, the clause would also affect covenants and rights held by the National Trust to conserve some of our most special and valued places for everyone to enjoy. I declare an interest as a member of that august organisation, as I am sure are many Members around this House.

Typically, these covenants and rights apply to land surrounding National Trust-owned land, to buildings or land not owned by the trust but which have historical significance, or to beautiful or wildlife-rich landscape worthy of protection. Crucially, the rights held by statutory undertakers such as utility companies and Network Rail are already sensibly protected from the scope of the clause, because of the important public benefit that these rights give. I contend that National Trust covenants and other rights give comparable public benefits, and this should be recognised in a similar way. I hope this is an unintentional oversight by the Government and that they will see it as a helpful amendment and will accept it. I beg to move.

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Parminter, for raising this very important issue in the context of Clause 179. As the noble Baroness set out, Amendment 103C would reflect the special protection accorded to land held inalienably by the National Trust in compulsory purchase legislation. The Government are sympathetic to the thrust of the argument that the power in Clause 179 to override easements and restrictive covenants when carrying out works on, or using land acquired by, a body with compulsory purchase powers could have an adverse effect on rights benefiting the trust’s inalienable land. The Government have also noted the concern that it may impact on other land over which the trust has covenants under Section 8 of the National Trust Act 1937. As the noble Baroness has pointed out, to avoid such a possibility, consideration should be given to the trust being accorded a similar exemption to that in Clause 179(8) for the rights of statutory undertakers. Doing so would safeguard the trust’s covenants, easements and other ancillary rights so that the trust’s management and our enjoyment of the trust’s land and properties were not compromised. The Government will therefore consider this matter very carefully. With that in mind, perhaps the noble Baroness will be content to withdraw the amendment.

[Baroness Parminter]

I thank the Minister most warmly for those very encouraging words. I shall obviously discuss the matter with the noble Baroness, Lady Andrews, over the recess, but, being mindful of the time, I beg leave to withdraw the amendment.

Amendment 103C withdrawn.

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Moved by

[Baroness Parminter]

119: Clause 192, page 100, line 34, at end insert “, subject to subsection (3A).
(3A) The Secretary of State may not make regulations appointing the days on which any provision of Part 1 or Part 6 of this Act comes into force unless he or she has first made provision bringing into force section 32 of the Flood and Water Management Act 2010 (sustainable drainage).”

[Baroness Parminter (LD)]

My Lords, I am grateful that we have the opportunity to discuss these amendments this evening. While my name is to both of them, I shall speak only to Amendment 119.

The Government have rightly launched a national flood resilience review, which is due to report in the summer, but that review will come too late if the Bill paves the way for 1 million new homes without due regard for their flood resilience. New homes increase flood risks for developments and for surrounding communities. Concreting over a catchment speeds up run-off, increasing the likelihood of flooding. After the 2007 floods, the flooding review by Sir Michael Pitt recommended sustainable drainage as a way forward, which moved the Government to bring forward the Flood and Water Management Act. It was suggested in the Act that there should be further use of SuDS, with soakaways such as swales, ponds and other natural means to ensure that sewer networks were not overwhelmed during periods of heavy rainfall. We all know that well-designed SuDS can contribute to water quality, to coping with overheating and to biodiversity. But this Government delayed implementation and then abandoned that approach altogether, in favour of an “expectation” that major planning applications would include SuDS.

This was not because of the costs. Defra recognised, in its own consultation document, that,

“sustainable drainage systems are generally cheaper to build; and maintaining them will be cheaper (or need be no more expensive), than the … cost … required”,

in conventional drainage. The result of this expectation that the SuDS approach would work is that last year Barratt Homes, the UK’s leading housebuilder, included no provision whatever for sustainable drainage in a third of its developments. The Committee on Climate Change has analysed 100 planning applications in areas of flood risks and found that fewer than 15% proposed SuDS. If the Government wish to challenge that evidence, what monitoring are they doing at a national level of the uptake of SuDS?

The National Policy for the Built Environment Committee of the House of Lords, on which I and other noble Lords sat, has looked at this issue. In its report last month, it argued that the Government should take a more proactive approach to the provision of SuDS. In legislating to provide for new homes, we must seek to contain the time to plan for them—absolutely. But we need a process ensuring that new homes are built to a standard that will protect them from flood risks and not exacerbate risks for established communities. I shall not list the many organisations which have written to the Minister in support of this amendment, because we do not have time. I will merely beg to move and hope that other Members might pick up some of the points that I know need to be raised.

[Lord Krebs (CB)]

My Lords, I shall speak briefly to this because the noble Baroness, Lady Parminter, has made most of the points that I would want to make. My name is also on Amendment 119 and I would like to go on to refer to Amendment 120, on which my name comes first. But to add briefly to what the noble Baroness has said, the real problem is that developers still have the automatic right to connect to the existing sewerage system. We know from estimates that more than half the existing sewers are already overloaded. While developers have the automatic right to connect, they are not incentivised to look at other ways of managing surface water flooding. Furthermore, when SuDS are installed, there is no clarity in the current regime about who should pay for the maintenance once they have been built. In any case, the current guidance applies only to developments of 10 homes or more, so small urban infill developments which could be creating some of the biggest long-term problems are not covered. Around 100,000 minor planning applications are approved each year which are not subject to the new safeguards.

So the aim of this amendment is to ensure that SuDS are the default option in new developments and to help achieve this by removing the automatic right to connect to existing sewerage systems. Connecting new developments to existing sewers should be the absolute exception, once other options have been exhausted.

I turn to Amendment 120 on developer liability. This amendment focuses on the long-term costs for society arising from continuing development in the flood plain and presents a simple, workable proposal to address the current lack of incentive for developers to make new properties safe and resilient to flooding. We know that, at the moment, more than 100,000 homes have been built in the flood plain since 2008—28,000 of these in areas at a greater than one-in-100 annual chance of flooding, taking into account the protection provided by any flood defences. The consequences are that, in the long run, owners of new homes are being exposed to unnecessary flooding risk.

A one-in-100-year chance sounds very small. We have to remember that this is the chance of flooding in a particular place. If there are 100 such places, then there is the likelihood that someone will get flooded every single year. In fact, in this century, we have already had 12 significant flood events in 15 years. If we carry on as at present, we can more or less guarantee that someone, somewhere, is going to suffer the trauma of flood damage each year.

Data are not collected on whether or not new homes that are built in flood plains are made resilient. I declare an interest as the chairman of the adaptation sub-committee of the Committee on Climate Change As has already been mentioned by the noble Baroness, Lady Parminter, our data suggest that fewer than 15% of new homes have been built with sustainable urban drainage systems.

Are we putting too much faith in flood defences to protect new developments, when they are typically built to a one-in-100-year standard? There is evidence that developers and planners are taking what might be called a compliance approach to flood risk— following the process but putting too much faith in limited protection from flood defences and not taking into account the uncertainty in even the best flood models.

A recent example, of which I am sure noble Lords are well aware, is Bridge End Court, a residential care home and sheltered development in Cockermouth. It was built in the meander of the River Derwent, on land that had flooded badly in 2009, on the very edge of a flood zone 3, where it would not have been deemed appropriate development. After the 2009 flood, the local authority had the chance to require the development to go elsewhere but it allowed it to go ahead in the same place. In spite of the ground floor supposedly being set above the height of even a one-in-1,000-year flood, the care home was flooded in December and the residents had to be rescued.

What constitutes a one-in-1,000 standard is highly uncertain. This is where developers come in. Developers are required to produce a flood risk assessment for a site, but they bear no liability if they take risks or simply get it wrong. The assumptions in the flood models that underpin a flood risk assessment can be selected either to increase the assessment of flood risk or to make it appear lower than reality. I should emphasise that I have seen no evidence that developers are manipulating flood risk assessments but, in principle, they could.

It is worth noting some Environment Agency figures. The Environment Agency has to be consulted on developments and it objects to about 3,000 applications per year on grounds of flood risk. In a sample of nearly 1,700 objections between 2009 and 2013, 20% of those objections were because the developer had produced no flood risk assessment whatever and 54% of them were objected to because the flood risk assessment was unsatisfactory. Among the reasons they were unsatisfactory were that they did not take into account future sea level rise, future increases in river flows or future increases in surface water flooding.

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[Baroness Williams of Trafford]

I do not think I can give that assurance, but I shall certainly try to put a timescale on it before Report, if that suits the noble Lord.

I hope that the noble Baroness will feel able to withdraw her amendment, but I also hope that the Committee will indulge me; I know everyone is anxious to get away. We have spoken about how planning applications for housing can often take an extraordinary time to complete. After some very long nights in this Chamber, I believe people are beginning to say the same thing about planning Bills. I pay tribute to everyone who has spoken in debates today and through the whole course of the Bill so far. The expertise which noble Lords have displayed has greatly enhanced consideration of the Bill, as well as my thinking about how we can improve its implementation.

I know that many noble Lords will not believe me when I say this, but I look forward to continuing the debate on Report. Although we will continue to disagree on some issues, we will, I hope, move closer to agreement on others. Over the Recess, therefore, I shall be tabling a number of government amendments which will take into account some of the points that noble Lords have raised. Given the hour, I will write to noble Lords with further details shortly—and I mean shortly.

I am sorry that the noble Lord, Lord Foster, is not here—oh no, there he is in the corner. I have also written to the DPRRC, responding to its 20th and 21st reports and have placed a copy of that letter in the Printed Paper Office, as noble Lords requested. I am happy to be making a number of positive changes. I will not detail every point here now, because I fear that noble Lords have heard enough from me, but I hope that my response will be helpful.

One final Easter present to you, my Lords, before we rise: within the past couple of hours, we have launched our consultation on starter homes. During Committee, noble Lords from across the House raised a number of questions about the implementation of the starter homes programme. I heard their concerns, and in response we have decided to consult on a number of proposals. We will spend the next eight weeks actively engaging with the housing industry and local government, and I am happy to ask my officials to brief any noble Lord who wants to know more. I have written to noble Lords with further detail and, again, asked my officials to place the consultation in the Printed Paper Office and the House of Lords Library.

That is it for now. I thank your Lordships again for the depth in which we have scrutinised the Bill and wish you a very happy Easter.

[Baroness Parminter]

Briefly, I thank the Minister for her recognition that the issue of sustainable homes is serious. I have two quick points. The Government’s defence for not accepting the amendments seems to be that they want to ensure that the new arrangements have time to bed in. I am grateful that they are offering us more information about the stakeholder meetings. I am sure the Committee will agree that stakeholder meetings bear no comparison to national monitoring of the situation, both of the number and quality of SuDS. The evidence we have seen from major housebuilders and the adaptation sub-committee shows that this is not working.

Secondly, I am grateful to the Government for confirming that costs are not stopping them moving on this issue, it is the issue, as they put it, of undue delay. My argument would be that one extra stage in the process of planning is worth the price that will be accruing to the benefit of home owners, the wider community and the environment from the introduction of SuDS. On that basis, I will go away with colleagues and consider the response. I thank colleagues around the Committee who have joined in promoting this cause. We may well wish to return to it on Report.

Amendment 119 withdrawn.