Levelling-up and Regeneration Bill

Baroness Young of Old Scone Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, I shall speak also to the other 15 government amendments in this group. Amendment 225 to Clause 120 of the Bill, along with Amendments 226 and 227, are minor and technical. In developing NSIP applications, applicants are required to consult statutory consultees who provide expert advice to ensure that infrastructure is delivered in a way that supports our objectives, including those around enhancing the natural environment, public safety and protecting historic assets.

Clause 120 provides a power for the Secretary of State to make regulations to set up a charging regime for specific statutory consultees to recover their costs for the services they provide to applicants when engaging on NSIP applications. Our policy objective is to ensure that applicants should pay for advice from specific statutory consultees throughout the consenting process, and to support statutory consultees to achieve full cost recovery for their services.

Exemptions in subsections (4) and (6) of the new section inserted by Clause 120 were originally included to ensure that excluded persons were not liable for the costs of advice provided to them, so that regulations could make it clear that the applicant bears liability for such costs. However, through discussions with relevant statutory consultees, it has become clear that these subsections would also prevent applicants being charged where the Secretary of State engages with statutory consultees directly. Therefore, the clause would prevent specific statutory consultees recovering costs requested by an excluded person—even from applicants—in a timely way that supports faster decisions on applications for development consent.

To ensure that the clause delivers our policy aims, I propose that new subsection (4), and in consequence, a number of excluded persons defined in new subsection (6), be removed. The removal of these exemptions is required to achieve our original policy intention, whereby statutory consultees should be able to obtain full cost recovery for the provision of their services in relation to NSIPs, regardless of the person to whom those services are provided.

I now turn briefly to government Amendments 229 and 230. In Committee, we introduced an amendment to allow prescribed bodies named in regulations to charge fees for providing advice or information in connection with applications or proposals under the planning Acts, as defined in Section 336 of the Town and Country Planning Act 1990, which is now Clause 128 of the Bill. In Committee, the noble Baroness, Lady Parminter, eloquently set out on behalf of the noble Baronesses, Lady Young of Old Scone and Lady Hayman of Ullock, that the exclusion in new subsection (3)(b) on charging for advice provided to planning decision-makers could have the effect of inhibiting charging where applicants enter into a voluntary agreement with statutory consultees to provide advice or assistance as part of the planning application.

It is obviously not the intention of the power to disincentivise proactive and early engagement between applicants and statutory consultees or prevent statutory consultees charging where an applicant has voluntarily paid for a premium service—quite the opposite. On larger-scale proposals, there may be a need to have sustained and ongoing engagement with statutory consultees. So, as with the NSIP charging powers, we have listened and are making changes to address the issues raised. Through Amendments 229 and 230, we are changing Clause 128. These changes will have the effect of removing new subsections (3)(b) and (5), which provide for the exclusion. This should allay any concerns over the scope of our charging power and will allow us to work through the model of statutory consultee charging with the sector, through regulations. I should add that we have engaged with Defra, which sponsors Natural England, and the Environment Agency, and they see this amendment as a positive step forward.

All the other government amendments in this group, starting with Amendment 263A, are consequential to the marine licensing cost recovery powers. Clause 214 as introduced, which is now Clause 222, gave the Secretary of State new powers to make regulations which set the level of fees payable for post-consent marine licence monitoring, variations and transfers, where the Secretary of State is the appropriate marine licensing authority under the Marine and Coastal Access Act 2009. We are now extending those powers to Scottish Ministers, where the Scottish Ministers are the appropriate licensing authority under that Act in the Scottish offshore region, to avoid a legislative gap. In conclusion, the amendments are important as they remove any potential uncertainty as to the nature and scope of our cost recovery powers for statutory consultees and ensure that they can be made more effective. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak briefly to my Amendment 227A on an issue the Minister has already touched on: enabling statutory consultees, such as Natural England, Historic England and the Environment Agency, to charge both planning decision-makers and applicants for the advice they are required to give. That is, as the Minister noted, a valuable part of the planning system which supports the Government’s aspirations on growth and environmental sustainability.

Currently, this work is funded from statutory consultees’ ordinary budgets, and the growth in planning applications means that more and more money is drained from those ordinary budgets and away from their ordinary and very necessary work. The statutory consultees have tried to become as efficient as possible to cope, but the cost to them is now £50 million a year, and 60% of that is borne by Natural England and the Environment Agency. I declare my interests as a former chairman of Natural England’s predecessor and a former chief executive of the Environment Agency. In effect, that means that the planning system is operating with a hidden subsidy at the statutory consultees’ expense, with the major focus being on the planning proposals which present the greatest potential environmental impact due to their size and location—inevitably, those cost the most money for the statutory bodies to inquire into and report on.

As the Minister said, Clause 120 introduces charging for nationally strategic infrastructure projects, but it does not cover ordinary Town and Country Planning Act casework. I thank both Ministers, the noble Baroness, Lady Scott of Bybrook, and the noble Earl, Lord Howe, for their assiduity and flexibility in discussing that with me and others. They have made some limited concessions, but, at the end of the day, I ask the Government: why is there not a level playing field between Town and Country Planning Act casework and casework for nationally strategic infrastructure projects? That would resolve the issue for the statutory consultees.

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Moved by

[Baroness Young of Old Scone]

233: After Clause 128, insert the following new Clause—
“Developments affecting ancient woodlandWithin three months of this Act being passed, the Secretary of State must vary The Town and Country Planning (Consultation) (England) Direction 2021 so that it applies in relation to applications for planning permission for development affecting ancient woodland.”Member’s explanatory statement
This amendment requires the introduction of a consultation direction for developments affecting ancient woodlands.

[Baroness Young of Old Scone (Lab)]

My Lords, Amendment 233 is in my name and those of the noble Baroness, Lady Willis, and the noble Lord, Lord Randall. I thank them for their support. I declare my interest as chair of the Woodland Trust.

Noble Lords have heard me bang on interminably about this subject before but I shall briefly bang on about it again. It would require the Government to fulfil a promise they made nearly two years ago, during the passage of the Environment Act, to amend the consultation direction in planning law to require local planning authorities to notify the Secretary of State if a planning application would damage or destroy an ancient woodland.

Ancient woodlands are an important and irreplaceable gem. They are highly efficient in sequestering carbon and one of the richest habitats for biodiversity. Currently, there are more than 800 cases of ancient woodlands on the Woodland Trust’s register of woods under threat. It is noticeable that around 160 additional cases have come in during the last two years since the Environment Act promise was made. There has been no progress in implementing it. Those 160 or so cases need not have happened.

Ancient woodlands are irreplaceable because they have been formed over centuries into complex assemblages of species both above and below ground. They cannot be moved or recreated. If they are damaged, they are gone. We are down now to the last fragments of ancient woodland but they have no real protection in law. They are the cathedrals of biodiversity, with huge cultural and historical significance but none of the protections afforded to cathedrals or to any listed building.

This amendment would require the Secretary of State to consider and take a view on any development that was going to damage or destroy ancient woodland. In my experience, the consultation direction also acts as a reminder to planning authorities and developers of the need at all costs to avoid developments that threaten ancient woodland.

It is very distressing to see cases where, on many occasions, good prior discussion on the location and design of developments would have avoided the need to damage ancient woodland at all. It is notable that even HS2, which holds the prize for the all-time number of ancient woodlands damaged, has managed, during the implementation phase, to reduce the level of damage and the number of sites impacted as a result of negotiations and discussions with the Government and the Woodland Trust. Regrettably, many are still being damaged, but it shows what is possible.

I know that the Government are keen to honour the commitment made during the passage of the Environment Act and to change the consultation direction absolutely along the lines of my amendment. The Minister and the noble Earl, Lord Howe, have given me a lot of time and some tremendous assurances about processes and timescales, but we have had assurances and flurries of activity during the past two years without progress being made. They fall back and get forgotten again. The process laid out by the Minister needs agreement between her department, Defra and a number of other agencies. I know it is an ignoble thought but this does rather leave quite a lot of room for delay and complication.

We now need a bit of legislative welly to guarantee progress. This amendment sets a deadline of three months after Royal Assent, which accords well with the indicative timescale offered by the Minister. I shall want to test the opinion of the House. I beg to move.

[Baroness Willis of Summertown (CB)]

My Lords, I rise briefly to give my full support to the amendment in the name of the noble Baroness, Lady Young.

I want to add one piece of information to the points made by the noble Baroness. This is now urgent. We need much better and tighter legislation in place to protect our ancient woodlands. Since the Environment Act 2021 was passed, 200 local planning use decisions have given the green light to damaging ancient woodlands. This represents about 0.2% of the remaining ancient woodland. If we carry on at this rate, it does not take much to work out how quickly we will lose the rest of this incredibly important ecosystem. We must give this important, urgent issue our full attention.

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[Lord Harlech (Con)]

My Lords, I declare my farming and land management interests in Wales, as set out in the register.

Amendment 233, in the name of the noble Baroness, Lady Young of Old Scone, is substantially the same as the amendment put forward in Committee. I pay tribute to her for her tireless campaigning on the importance of ancient woodlands, as well as to the noble Baroness, Lady Willis of Summertown, for her insight in this debate. While we resisted this amendment in Committee, I am now persuaded that we can and should make a change of direction to capture this proposal in advance of a wider review later. I know that my noble friend Lady Scott of Bybrook has written to the noble Baroness to that effect already.

The intent behind this amendment, and indeed our public commitment to amend the consultation, is already being progressed. Officials from DLUHC and Defra are working with the Woodland Trust, the Forestry Commission and Natural England to develop a suitable amendment to the direction. The ultimate aim is to seek a common position on the meaning of “affecting ancient woodland”, a definition which considers the number of likely referrals to the Secretary of State, alongside how effective they would be at capturing the main points of concern. No legislative or parliamentary processes are required to issue the amendment to the consultation direction. I am therefore confident that an amended direction will be in place by the end of this year.

In addition to progressing the changes to the consultation direction, officials in DLUHC and Defra are delivering on further commitments made regarding ancient woodland and ancient and veteran trees during the passage of the Environment Act. A review of how national planning policy on ancient woodland is being implemented in practice is under way. The aim of the review is to give us a better idea of whether further protections are needed to ensure that these irreplaceable habitats have appropriate protection within the planning system. The findings of this analysis will feed into our wider review of the National Planning Policy Framework, which will be subject to a public consultation.

The noble Baroness, Lady Young of Old Scone, mentioned the losses of and impact on ancient woodlands from HS2. The Government and HS2 Ltd recognise that ancient woodland is an irreplaceable habitat, and the design of the railway has sought to avoid its loss wherever possible. Defra, the Forestry Commission and Natural England have worked with the Department for Transport and HS2 Ltd to ensure that route design and delivery plans minimise any loss of ancient woodlands and veteran trees.

Where effects on ancient woodland cannot be reasonably avoided through design, HS2 Ltd has committed to providing a range of bespoke compensation services for each woodland affected, in line with advice provided by Natural England and the Forestry Commission. HS2 Ltd is working with the Forestry Commission to deliver an additional £5 million HS2 woodland fund on phase 1 and £2 million on phase 2a. This will result in hundreds of additional hectares of woodland creation, in addition to the core compensation planting delivered by HS2 Ltd itself.

Since May 2023, the woodland creation aspect of the fund is now available under the England woodland creation offer, while the restoration of plantations of ancient woodland sites—PAWS—will continue to be administered under the HS2 woodland fund. As of November 2022, the phase 1 HS2 woodland fund has completed 34 projects, which has resulted in 123.6 hectares of new woodland creation and 71.9 hectares of schemes to restore native woodland on plantations on ancient woodland sites.

Where loss of woodland is unavoidable, there is a range of measures, including the translocation of ancient woodland soils and features, salvaging ancient woodland soils and seed banks that would otherwise be lost and translocating those to enhance new woodland planting sites and support the restoration of degraded ancient woodland sites. All the measures, whether they be the creation of a new habitat area or the enhancement of existing habitats, will be supported by long-term management plans and agreements with landowners or third parties where relevant. HS2 Ltd publishes an annual Ancient Woodland Summary Report, providing updates on how the scheme is impacting ancient woodlands and the progress that is being made on delivering the range of compensation measures that have been committed to.

Further to this, in 2021 the Government published the updated keepers of time policy on ancient and native woodland and ancient and veteran trees in England. The statement updates the Government’s policy to recognise the values of these habitats and our objectives to protect and improve them for future generations.

My noble friend Lord Lucas and the noble Baroness, Lady Pinnock, spoke about the need for long-term strategies to protect ancient woodland sites. Since the keepers of time policy was first published in 2005, more than 27,000 hectares of plantations on ancient woodland sites in England have been brought into restoration since 2010. However, the Government are going further and in 2021 they published the updated keepers of time policy on ancient woodland. Managing Ancient and Native Woodlands in England was released in 2010, which provides guidance to help land managers to make appropriate management decisions. The Forestry Commission is working with the Sylva Foundation and partners to make assessment of woodland ecological conditions simpler for users through the development of an app, which will allow us to gather data on the condition of our ancient and native woodlands and monitor progress against our ambitions. In addition to the NPPF review, two additional research projects are under way to understand the impact of development on woodland, through the nature for climate fund and a forest research project.

I hope that I have been able to reassure the noble Baroness and the House that we are doing all that we can to protect these vital ecological infrastructures and that she will be content not to press her amendment.

[Baroness Young of Old Scone (Lab)]

My Lords, I thank all those who have spoken in support of my amendment as well as those who are silently cheering me on but not speaking, as we are all keen to get on to the debate on nutrient neutrality. I thank the noble Lord, Lord Harlech, for his account of the range of measures that the Government are taking to improve ancient woodland and his commitment—rather surprising, but I was very pleased—to progress on the other commitments that were made on ancient woodlands during the passage of the Environment Act. I have not started campaigning on those yet, but I am grateful for the invitation to do so.

It comes down to the fact that promises are made and sincerely committed to, but there is many a slip ’twixt cup and lip. To be honest, unless we get a clear legislative date for this change to the consultation direction into statute, there is always a risk that it will dribble away—we will have a spring election, everybody who knew anything about it will have disappeared and we will be back to square one. Despite all the assurances all the way through this process from the noble Baroness, Lady Scott, the noble Earl, Lord Howe, and the noble Lord, Lord Harlech, which I very much welcome, I would like to test the opinion of the House.