Levelling-up and Regeneration Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Thursday 20th April 2023 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Baroness, Lady Pinnock, for introducing her amendment. We agree with everything she has just said. I am also objecting to Clause 101 standing part of the Bill, because we are very concerned about the implications of this clause. We have also put down an amendment to probe whether guidance will be published on Clause 101, but our major concern is with the clause itself.

As we have heard from the noble Baroness, Clause 101 inserts new sections into the Town and Country Planning Act to provide for two new routes to apply for planning permission for the development of Crown land in England. In other words, we are talking about land where there is a Crown or Duchy interest. In the case of either route, the provisions in the clause will allow the appropriate authorities to apply for planning permission direct to the Secretary of State, rather than being subject to the same requirements and application processes as anyone else wishing to undertake development. In such circumstances, the Secretary of State must notify the local planning authority whether they intend to decide the application. If they decide to determine it themselves, they can approve it either conditionally, or unconditionally, or refuse it. They will also have to consult the local planning authority, to which the application would otherwise have been made, but the authority will have no right to veto it.

What does the policy paper that sits alongside the Bill say? It says that it is a means to

“provide a faster and more effective route for urgent and nationally important Crown development”.

That sounds all well and good, but, like the noble Baroness, Lady Pinnock, we are also concerned about the implications of introducing such an open-ended measure. This is regarding both removing appropriate and necessary limits on the exercise of executive power and denying communities a chance to express their views about development in their area and their ability to indicate either consent or opposition.

We fully appreciate that there will be emergency situations where it is necessary to speed up the planning application process for essential development. Off the top of my head, I can think of the Nightingale hospitals during the Covid pandemic. However, the broad scope of the provisions in the clause, which do not provide for any limit on the type of development that can be approved directly by the Secretary of State, or in what circumstances, means that they could be used for a much wider range of proposals.

This could include a number of circumstances, but I would like to focus on one in particular, as did the noble Baroness, Lady Pinnock. The Committee will know that the Government have opened centres to provide accommodation for asylum seekers and are looking to open further such centres. I would like to thank Asylum Matters, Medical Justice, the Helen Bamber Foundation and Ripon City of Sanctuary for their helpful briefings. The Government have, as the noble Baroness said, consistently sought to avoid public scrutiny of and consultation about the construction or operation of large-scale institutional facilities for asylum accommodation.

The Home Office has previously successfully opened such facilities on ex-military sites at Coltishall in Norfolk—which is now closed, despite an attempt to reopen it—Napier in Folkestone, which is still open, and Penally in Pembrokeshire, which is now also closed. It has further made attempts, despite local opposition, to construct or operate similar facilities in Barton Stacey, Hampshire, in a facility on the Yarl’s Wood Immigration Removal Centre site in Bedfordshire and, from April 2022, as was mentioned by the noble Baroness, at an ex-military base in the rural village of Linton-on-Ouse, North Yorkshire. All these projects have been the subject of intense controversy and, in the cases of Napier and Penally, legal challenge over the profound harm to people seeking asylum, as well as the lack of government consultation of local communities and the resulting impacts on community cohesion.

At both Yarl’s Wood and Linton-on-Ouse, pre-action correspondence was issued, and the developments were halted prior to judicial review. At Penally, the Secretary of State for Wales stated that he first had discussions with the Home Secretary about use of the site just nine days before it opened, and the local health board was informed three days prior. At Napier, the local council, local MP and local and district councillors wrote to the Home Office to protest that they had been given

“very little notice of the decision”

to open the barracks and that it was

“one they could not support”.

A similar lack of consultation occurred at Barton Stacey and at Yarl’s Wood. In the case of Napier, planning permission for the facility was initially secured under class Q emergency development rights for six months, subsequently extended to 12. The Secretary of State granted herself permission to use Napier Barracks for a further period of five years, without any public consultation, through the unusual procedure of using delegated legislation.

The Government’s approach has been criticised by your Lordships’ Secondary Legislation Scrutiny Committee, which raised concerns that the Town and Country Planning (Napier Barracks) Special Development Order 2021 had been laid while Parliament was in recess and that “insufficient information” had been provided by the Government about these developments.

After the fact, the Home Office ran a public “consultation” on the change of use of the site. But this cannot be considered a meaningful consultation, as it took place after permission had been extended. The planning statement that was issued at this time included a commitment to complete a statement of community involvement. This has still not been published, despite the consultation closing at the end of January last year. Perhaps the Minister could give an update on that.

In a judgment handed down on 24 June last year, the High Court ruled that the decision to grant planning permission for a further five years was unlawful. The judge ruled that there was a failure to have proper regard to the public sector equality duty and that the development raised

“very obvious issues … in particular relating to … potential victimisation and harassment … and the fostering of good relations”.

Lack of consultation by the Government has had serious effects on community cohesion in places where large-scale institutional sites have been contemplated. Last April, the Government announced their intention to move towards a system of large-scale permanent asylum accommodation centres in which to place people seeking asylum who would otherwise be destitute, while they await a decision on their claim. The flagship announcement of a facility to accommodate 1,500 people seeking asylum on the ex-RAF base at Linton-on-Ouse, which we have mentioned, was made without any reference at all to the local community, the parish council, the district council, the police and crime commissioner or local police and health services. An initial justification for this was that it was part of a bigger series of announcements.

Current planning laws and, in particular, the right of local residents to be heard on decisions which affect them have proved a barrier to government attempting to institute these large-scale accommodation facilities. Our concern is that the powers provided for in this clause are to facilitate the driving through of centres regardless of their impact on the people placed in them or the local communities in which they are situated. They allow government to totally bypass local councils on asylum accommodation. This is completely the wrong approach. We believe it should be a legal requirement to consult local authorities on asylum accommodation locations.

Appropriate safeguards must be added into the clause to ensure that there are limits to the use of these powers and that minimum requirements are in place to secure some measure of consent from affected local communities. Without a firm commitment that such safeguards will be introduced at a later stage, we believe that Clause 101 must be removed from the Bill.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have not participated in this Bill so far. I arrived today thinking seriously about the matter of principle in the powers given to the Government by Clause 101, and with some sympathy for the ideas behind Amendments 257B and 258ZA. I am disappointed by the way in which both noble Baronesses have spoken to them, moving away from the principle of the way in which the Government have powers to a discussion about immigration policy and the use of asylum centres. That is a much narrower issue; it will come out of this, but it gets away from the principle of the Government having undue powers for whatever reason. Moving on to something highly controversial and difficult at this stage muddies the water in a way that is unhelpful for those of us who think that Clause 101 contains undesirable powers.

The noble Baroness referred to the Secondary Legislation Scrutiny Committee, which I chaired during the Napier barracks statements. We have seen the Government push the envelope, in particular during the pandemic. The noble Baroness, Lady Bakewell of Hardington Mandeville, will recall some of this as a former member of the committee. Things such as permitted developments were pushed out in response to the needs of the pandemic. I understand that; emergency statements needed to be taken and things needed to be done quickly.

We saw the impact of that in many ways, but most obviously in our having restaurants in the street, which was needed at the time because otherwise they would have had to close due to social distancing. We on the SLSC were content about this because there was a sunset clause built in. However, a year later it was removed by another piece of legislation. By two steps, the Government moved from one position to another with minimal scrutiny from your Lordships’ House and the other place. That is the issue I am interested in exploring in this clause, rather than involving ourselves in discussions about immigration, which will take us back to all sorts of difficult areas that will not help the development of the argument.

The Government said in response to our concerns about making these permitted developments permanent that we were semi-killjoys, trying to stop restaurants in the street and so on, but the reality is that they were controversial for mothers with buggies, pallet truck drivers, people with limited vision and, above all, people who lived above them—all of us talk rather louder and laugh a bit more when leaving a restaurant at 11 pm having had a few glasses of wine, so people found their children being kept awake and so on.

Levelling-up and Regeneration Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

[Baroness Willis of Summertown (CB)]

My Lords, before speaking to the amendment, which I strongly support, I remind the Committee of my role as a director of Natural Capital Research Ltd.

I see the amendments as really important to meet not only our environment targets but the COP 16 targets, to which the Government signed up last December to achieve at least 30% of our landscape as “protected for biodiversity” by 2030. How close are we to this target? According to JNCC estimates of protected areas in the UK, 28% of our land is already protected. Although 3% in seven years does not seem too bad, that percentage includes national parks and AONBs; if we take those out, the total amount of protected land is reduced to around 11.35%. In fact, without including the national parks, many people, myself included, would agree that there is no chance we will achieve 30 by 30. I know that the Minister is very keen to reach that target; he told me that it is written above his desk, so I am holding him to that.

Why can we not include national parks in that figure? That seems really counterintuitive. Although most people think of national parks as beautiful biodiverse landscapes, we need to think again. The vast majority of our national parks and AONBs are not currently managed for their biodiversity; in fact, biodiversity is not in their strategic plan and is not required of them. As the noble Lord, Lord Randall, explained very well, this was pointed out in the excellent Glover review on national parks and AONBs four years ago. What the review suggested was that we need urgent changes to our legislation on national parks so that we make them focus strategically on biodiversity conservation and enhancing natural capital. But it gets worse: it is not that they just do not pay attention to doing that; if you looked at some of our national parks, you would think they were doing the opposite of what is required for biodiversity conservation and meeting our environment targets.

I will give the Committee some examples; the noble Lord, Lord Randall, has already given one on the SSSIs. One of the environmental targets we set this year was a clear target for clean and plentiful water. This is not being met in most of the rivers of our national parks. For example, the River Dove, one of the most scenic rivers in the Peak District, recently had its ecological status measured, and its surface waters reached 6% of what would be classified as “good ecological status”—that is pretty poor. This goes on. In the Brecon Beacons, 27 sections of the River Wye missed their pollution targets last year as a result of agricultural land run-off and sewage, as we have seen in the news today. These are not just cherry-picked examples; there are numerous examples such as these of the status of our rivers inside national parks.

The target for clean air is another case. We know that one of the most widespread causes of pollution is from traffic, yet in the last five years we have had three major roads agreed to either around the edge of a national park or through the middle of an area of outstanding natural beauty: the A27 bypass on the boundary of the South Downs National Park, the A47 link road outside the Peak District National Park, and the A66 Northern Trans-Pennine road, which runs right through the middle of an AONB.

Our third target is to enhance our thriving wildlife. The problems meeting that target seem even worse in national parks because, along with the SSSIs having a worse rating inside park boundaries than outside, 17% of the land in national parks is forested. That sounds good, until you realise that a third of that includes forestry plantations, many of which are managed by the Government’s own Forestry England. For example, in Northumberland National Park, 20,000 hectares is forestry planation. These are monodominant plantations managed for their timber, and they are really bad for biodiversity; we cannot pretend that they are not. A fantastic meta-analysis published about six weeks ago looked at data from 338 plantation sites across Europe. In every site, it found lower biodiversity, lower species richness and lower abundance for plants, animals and micro-organisms. Even more worryingly, it found low organic carbon in the soil. We are looking for those soils as a “get out of jail free” card for some of our climate offsetting, yet we are planting forests that do the opposite.

I have cited a few of the brief facts and figures. It might seem as though I am cherry picking but, believe me, I am not; these are real problems. Therefore, I see Amendment 387 as extremely important, because we simply cannot include national parks right now as protected areas. They will not deliver what the rest of world thinks of when we talk about protected areas.

This amendment flags up the whole issue and would give us a legislative structure to say what is really going on in national parks. So, for example, when permits are considered for intensive poultry farms, we would know that there is a legislative process for someone to look at and weigh their effects on water quality. When the highways authority considers putting a road right through an area of outstanding natural beauty, it would have to consider the effects on habitat and air quality. When Forestry England considers a planting regime for these monodominant coniferous plantations, the broadleaves would get a much better hearing because of this amendment.

To sum up, this amendment would lead to our great landscapes having better management in the future. They would then really start to contribute to that 30 by 30 process—otherwise, I really do not know how we will achieve it.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have Amendment 471 in this group, which is on a different point. It would insert a new clause on the extinguishment of unrecorded rights of way; it is therefore about footpaths. I am extremely grateful to the noble Baroness, Lady Scott of Needham Market, and the noble Lords, Lord Berkeley and Lord Thurlow, for having put their names to this amendment. Like my noble friend Lord Trenchard, I have not participated in Committee until now, so I apologise for that. Before I get down to the business of the amendment, I need to declare an interest: I am a member of the Ramblers and have been briefed by it about the implications of this particular amendment.

So, to horse: if one opens up an Ordnance Survey map of England and Wales, one finds it criss-crossed with a mass of footpaths, bridleways and other tracks. It is a unique facility that allows anybody—and I do mean anybody—to travel the length and breadth of the country and do so without having to walk, or to walk only rarely, on any tarmac. I am currently walking from Land’s End to John o’ Groats for my private pleasure in stages of about 70 miles. We have just crossed the A66 that the noble Baroness, Lady Willis, referred to and have reached Haltwhistle, and we are travelling on to Scotland on our next session. During those 500 miles, you see every type of countryside, from every angle and, I must say, in every type of weather. Nearly all of the time, the paths are uncontested by the relevant landowner, but not always. Sometimes, obstructions are placed in one’s way. Some are subtle, such as nettles, brambles or thorns; some are not so subtle, in the shape of barbed wire.

An important aspect of this national network is its connectivity. Close a part of the footpath and the value of the whole is diminished, if not lost completely. One has to recognise that there is of course a trade-off between the rights of the landowner who wants to see their land respected and the walker who wants to enjoy our glorious countryside. However, there is a common interest between both parties in that they want certainty, and that is what this amendment and the background to it are all about.

The trade-off was recognised as long ago as 2000 by the then Labour Government. They provided in the Countryside and Rights of Way Act for a statutory right for existing footpaths and bridleways, but gave certainty to landowners by requiring that these be properly registered with the relevant local authority by 31 December 2025. Those not registered by that date would be lost for ever. At that time, a 25-year framework probably did not seem too demanding. In a Question for Short Debate on 2 April 2019, which was initiated by the late Lord Greaves and in which some noble Lords who I see today participated, the noble Baroness, Lady Taylor of Bolton, said:

“I shall intervene only briefly. I was Chief Whip in the Commons when the legislation went through, and I assure everyone here that it was not anticipated that there would be a difficulty within that timeframe. It is the problems that arose later, particularly the pressures on local government, that have got us into the position today where it is vital that we look at the timescale again”.—[Official Report, 2/4/19; col. GC 32.]


In the period since, various efforts have been made to persuade the Government to look at the timescale again. Some amendments have been tabled in Committee on other relevant Bills, notably the Agriculture Bill and the Environment Bill, to which the noble Baroness, Lady Scott of Needham Market, moved an amendment on 21 June 2021. Others have been made by way of Parliamentary Questions.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

I am grateful to my noble friend for the news of a five-year extension. Could his department try to explain to local authorities the importance of giving some priority to registrations? As the noble Baroness, Lady Scott of Needham Market, said, they inevitably tend to get pushed down the hierarchy. We need to find as many ways as possible to bring them up to get this finished. However, I understand that there is a balance to be struck, and the Minister is fair to point that out.

[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.