Impact of Environmental Regulations on Development (Built Environment Committee Report)

Lord Banner Excerpts

Friday 19th April 2024 Lords Chamber

[Lord Banner (Con) (Maiden Speech)]

My Lords, I am humbled to speak for the first time in the House today. I thank all the wonderful staff and noble friends who have, in time-honoured fashion, facilitated the process of settling me in. I want to mention in particular the doorkeepers for all the assistance they have given me so far, as well as my noble friends Lord Blencathra and Lord Wolfson of Tredegar for supporting me at my introduction.

This is not my first job in this House. In 2005, before embarking on private practice at the Bar, I spent 12 months here seconded as a judicial assistant to the Law Lords, as they then were, before the creation of the UK Supreme Court. I had the immense privilege of working for Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood. Both remained close friends and mentors of mine until their passing—in the case of Lord Brown, only last year. I am sure this House misses them greatly, as do I. An independent and respected judiciary, applying the rule of law, is fundamental to the operation of our democracy. That is the lesson I took from my first stint in this building, and one which I shall apply in my second.

Like my noble friend Lord Moylan, whose Motion this debate concerns, I am a Brummie, who ended up in west London. I grew up near Barnt Green, a charming village on the outskirts of Birmingham, where my mother still lives. I am proud to have Barnt Green as the territorial designation on my Letters Patent, although I must confess it was not a difficult choice between that and the other nearby village, Lickey End.

There is one other introductory matter that it would be remiss of me not to mention, and that is Ukraine. I am lucky enough to have a Ukrainian wife, Tetyana, who is here today and to whom I owe so much, and we are the proud parents of our two British-Ukrainian children. Our close family and friends include Ukrainian women and children, who are routinely bombarded in their homes and in their daily lives, and heroes risking their lives to defend their country. To them and all Ukrainians, I say this: I hope with all my heart that the UK, Europe and the United States will continue to support you tooth and nail against Russia’s repugnant war of aggression. Slava Ukraini.

I now turn to the subject matter of today’s debate. I have had some difficult briefs in my time at the Bar, but few have been as challenging as maintaining the convention that maiden speeches must be uncontroversial while also offering a meaningful contribution to a debate about the impact of environmental regulations on development.

I start with the easy bit: declaring an interest. As a King’s Counsel specialising in planning and environmental law, it will not surprise your Lordships to hear that I have acted and continue to act for many clients in relation to the impact of environmental regulations on development, including in relation to nutrient neutrality, which will be the focus of my observations today.

Most of those clients are developers and land promoters who have felt that the current level of environmental regulation of development is disproportionate and ineffective. That is not, however, my only perspective. Until last month, I was for six years a board member, and latterly interim chair, of the Joint Nature Conservation Committee, or JNCC, the UK-wide statutory nature conservation advisory body. Although work on nutrient neutrality is currently led by the statutory nature conservation bodies of the four component countries of the UK rather than by JNCC at a UK-wide level, my engagement in that role with Natural England’s leadership and that of the other statutory conservation bodies has helped me see things from their standpoints too.

It is with that rounded perspective that I seek to cut the Gordian knot of meaningfully contributing to a controversial subject in a speech that cannot itself be controversial. I propose to highlight five areas of apparent common ground which, if considered carefully by all stakeholders, might help provide some focus on how to solve the current stalemate.

First, everyone seems to agree that the status quo in relation to nutrient neutrality cannot continue. In the middle of a housing crisis, the building of new homes is subject to an effective moratorium in many parts of the country because of currently unachievable requirements for them to be nutrient neutral. In the middle of a nature crisis, the main causes of the nutrient pollution of river habitats—farming practices and water companies’ underinvestment in their infrastructure—continue to damage the environment.

Secondly, requiring developers to pay farmers to take land out of beneficial agricultural production, thus offsetting the nutrient generation of new development, is not the solution. It is unsustainable in every sense of the word to take productive agricultural land out of use. Moreover, a fundamental tenet of environmental law is “the polluter pays”, yet in this situation the polluter gets paid.

Thirdly, the long-term solutions plainly lie in improving agricultural practices and upgrading water infrastructure, but that will take time. The key question then is what can be done in the meantime to allow the much-needed housing to go ahead before the farming and water industries get their acts together. What quick wins can be achieved in the meantime to reduce phosphate levels in rivers and provide headroom for new development? An answer to this question must urgently be found.

Fourthly, as the committee’s excellent report makes clear, a joined-up approach across government is essential in finding a way to reconcile these considerations, which straddle the departmental responsibilities of DLUHC and Defra, as well as others. I suggest that there may be lessons that can be learned from previous Governments in which responsibility for both planning and environmental matters fell under the same departmental roof.

Finally, one of the most important things for the development industry is predictability. Land use regulation is called “planning” for a reason—the clue is in the name. Unplanned and sudden changes to rules and requirements undermine market and investor confidence. There appears to be broad consensus that the impact of nutrient neutrality requirements on the development sector has been significantly exacerbated by the lack of advance warning or consultation. Lessons can surely be learned about the need for fair notice of future environmental regulation of development.

There is not much more I can say within the limitations of this maiden speech, but I hope to make further contributions to the House’s consideration of these important issues in future.