Environment Bill

Lord Lucas Excerpts

Committee stage
Wednesday 7th July 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, the noble Lord, Lord Randall of Uxbridge, has withdrawn, so I call the noble Lord, Lord Lucas.

[Lord Lucas (Con) [V]]

My Lords, I very much support the idea that the automatic right of connection should end. We really need an arrangement that puts pressure on developers to make their developments as friendly to the water system as possible, and an automatic right of connection obviously does not achieve that—so that should be a very fruitful direction to go in.

Has my noble friend looked at the Hampshire County Council nitrates credit scheme? This is a scheme it is putting together so that new housing developments in Hampshire, which would otherwise add to the nitrate burden in rivers and therefore to nitrate pollution in the estuary, can offset that additional pollution by purchasing farmland, which is currently a substantial source of nitrates, and taking that out of production. This is an interesting idea, but I very much hope my noble friend will look at integrating such schemes into the overall direction of the Bill.

First, I do not think it is a good idea that developers should have a simple way around their obligations. They ought to be doing things internal to the development to reduce pollution and the stress on the water system. To allow them to buy their way out of it does not seem desirable. On the other side of things, if we are to take land out of production for these purposes, that absolutely ought to be integrated with the other schemes happening in the Bill—forestry, rewilding, biodiversity gain and so on—not just something that happens randomly on the side. I very much hope that between now and Report my noble friend will be able to take an interest in what Hampshire is up to.

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[Baroness Young of Old Scone (Lab) [V]]

My Lords, making biodiversity net gain a mandatory requirement for most development is a good thing, though it will need several safeguards. Extending the net gain provision to nationally significant infrastructure is welcome, and I congratulate the Minister on that amendment. However, I believe that we need Amendment 194C in the name of my noble friend Lady Jones of Whitchurch, to also include major infrastructure projects consented in other ways, including hybrid Bills, Transport and Works Act orders and whatever the new consenting mechanisms are that the Government invent in the new planning Bill. It is a pity that we have not yet seen the proposals arising from the consultation on planning. Can the Minister give us an indication of when we will see the Government’s proposals for planning? It would be extremely disappointing if major projects such as HS2 and East West Rail were not required to deliver biodiversity net gain.

I know that, latterly, HS2 has opted voluntarily to deliver biodiversity net gain on some of its later sections, if you can call being frog-marched into this by the NGOs, local protest groups and the Government a voluntary agreement. These big government-sponsored, taxpayer-supported and highly controversial projects should be like Pharaoh’s wife and be obligated to deliver the highest standards of biodiversity net gain. Of course, HS2 can never deliver biodiversity net gain as long as it is damaging ancient woodland, which is an irreplaceable habitat and therefore represents an irreplaceable biodiversity loss.

The Minister kindly wrote to noble Lords last week about HS2 in response to issues raised by the noble Lord, Lord Framlingham. His letter, alas, fuelled my concerns about the potential misuse of the term “biodiversity net gain.” He indicated that HS2 phase 2b—Crewe to Manchester—would deliver biodiversity net gain, but he then went on to say that, because ancient woodland could not be replaced, it would simply be out of the scope of the net gain objective for HS2. Therefore, HS2 will be able to boast publicly of being a net gain project, while still being the single biggest cause of damage to our declining and irreplaceable ancient woodland. This is, frankly, misleading if not mendacious. Defra, we understand, is planning a consultation, expected to start this summer, on the development of regulations and guidance on irreplaceable habitats. Can the Minister assure the House that the regulations and guidance will not allow projects that are, in reality, not delivering net gain to portray themselves as net gain projects?

Biodiversity net gain needs other safeguards. Amendment 198A in my name would make sure that existing and possibly long-standing nature sites and habitats were not simply regarded as tradeable for newly created sites elsewhere—as the noble Baroness, Lady Bennett, said, possibly quite far elsewhere—under the net gain provisions. My amendment would ensure that the mitigation hierarchy had been followed. I am sure that noble Lords read the mitigation hierarchy every night before they go to bed, but I shall explain.

The mitigation hierarchy is part of the National Planning Policy Framework and outlines a set of principles that local planning authorities should work through in determining whether to approve a planning application impacting on biodiversity. It is a sort of stepwise, catechism approach. First, developers would be asked to seek to avoid impacts on biodiversity and, if that was not possible, to minimise them and then take onsite measures to rehabilitate or restore biodiversity, before finally resorting to offsetting residual, unavoidable impacts offsite. Can the Minister assure the Committee that the mitigation hierarchy will remain a requirement of the planning system and that there will be sufficient safeguards to ensure that offsite net gain is a last, not a first, resort under the net gain and planning provisions? It is on both the net gain and the changes in the planning system that the Minister needs to assure us.

A further strengthening of the net gain provisions is required. This is pointed out by my noble friend Lady Jones of Whitchurch, supported by the noble Baronesses, Lady Parminter and Lady Bennett of Manor Castle, and the noble Lord, Lord Teverson, in Amendments 196 and 201AZB. They would require habitats created under net gain to be maintained in perpetuity rather than only for 30 years. Previous speakers have debated this. The reality is that some created habitats will only just get going in 30 years; they certainly will not have reached the richness, complexity and resilience of long-standing habitats. The Government’s carbon scheme requires woodland sites created for carbon storage to persist for 100 years, so if it is possible to get that sort of longevity for a site despite changes of hands and ownership and the length of the policy, why can we not do it for biodiversity net gain?

We must not get into the crazy position that arose in south Wales with the extension of the M5 over the sensitive wetland sites in the Gwent Levels. Compensation habitat was created but, when the M4 relief road proposals came forward 20 years later, they planned to go straight through the compensation habitat. Mercifully, the Welsh Government reacted magnificently and rejected the plans. We do not want serial decimation of net gain habitat. Can the Minister assure the Committee that habitat created in the interests of net gain will not be allowed to disappear after 30 years? Will he accept the amendment in the name of my noble friend Lady Jones of Whitchurch?

[Lord Lucas (Con) [V]]

My Lords, I have four amendments in this group. Amendment 201AA is about setting standards for the quality and content of information about biodiversity gain. This is an area where there are currently considerable problems. You are supposed to be able to get an expert to judge, for instance, the quality of a grassland. If you ask four different experts, you will probably get four different answers. There are no standards. There are no benchmarks.

Since we are moving to a situation of knowing what quality we are starting with and what quality we wish to end up with, we have to do this in a way that is measurable and verifiable. Therefore, I am keen that the Government should set objective and usable standards and have them in public so that people can refer to them and argue with them at the time when planning permission is being discussed and so that, 20 years down the road, we can judge whether what has been agreed is being maintained and do so consistently without having to wish for the luck of having chosen the right expert. In this context, I am keen that the state of a particular environment should be judged in the right season. It is obviously impossible in January to know what the quality of a particular bit of chalk grassland is; it has to be judged at a time of year when the plants and insects are in evidence.

Amendment 201AB is about how biodiversity gain should be audited. If we are to require something to be kept going for 30 years, somebody has to keep an eye on it. If we want that to happen, we have to provide the funds up front so that it can. I am not at all clear how the Government envisage an obligation to maintain a site being checked up on in practice.

Amendment 201AC comes back to a subject discussed previously by the noble Baronesses, Lady Young of Old Scone and Lady Bennett of Manor Castle: how we secure that these obligations are enforceable in practice. To my mind, the obligations have to stick to the land. It has to be something that is enforceable against whoever owns the land at that particular time, whether that be a freeholder or a leaseholder, so that there is always somebody with sufficient interest that they will notice that they have to do something, be aware of the consequences of a notice to improve and take action. I cannot see anything in the current arrangement that will make sure that biodiversity gain sites, particularly those that are part of the land being developed—that is, small local sites, which are not part of major biodiversity gain trading sites but little local things tucked away that will be hard to notice—are kept going. We need something that will do that. I hope that somewhere in the Bill is a requirement that biodiversity gain on those sorts of local sites should be congruent with the local nature recovery strategy. I have missed that; I have not tabled an amendment about it, but I would love to have the Minister confirm to me that that will be the case.

I very much support what has been said about making biodiversity gain exist in perpetuity. I do not think of it as unchangeable but, if something happens that damages that gain, the system should swing into action again and the person doing the damage should be required to provide additional gain elsewhere or on the same site in much the same way as if they were doing an original development. I cannot see the point in things ending in 30 years. It is pointless. It is not what we are talking about; we are talking about changing things for ever, so let us say that.

I know that my noble friend the Minister has been sent a copy of a paper by my honourable friend Bim Afolami; I hope that he will find the opportunity, now or in correspondence, to comment on it. Mr Afolami is concerned that the Government’s plans for introducing biodiversity gain are much too slow and that opportunity should be given to those authorities that want to move faster to get going straightaway. Not everyone will be in a position to do that, but some of us will be ready. I do not see the point in holding back for two years just because not everything is ready. If the Government let those of us who are ready move early, a lot will be learned from our experience that can then be built into the procedure that opens up for everybody after the initial two years.

In particular, to pick up on an amendment which we will not see, because it went down too late, from my noble friend Lord Ridley and myself, I think there is a lot to be said for enabling—authorising—the automated creation of biodiversity gain statements and suggestions for small developers. If we do not do something to really help small developers, they will be hit by very large costs relative to the size of the development in getting a biodiversity gain statement together. We need to make it easier for them, but if we are making it easy for them, we need quality, and I think the suggestions in my right honourable friend’s letter address that. I hope the Minister will be able to reassure us that small sites will not end up being low quality or we will not end up deterring small builders by imposing on them obligations which are not proportionate to the size of their development.

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[Lord Goldsmith of Richmond Park (Con)]

On the first point, my noble friend is absolutely right. My comments relate to the fact—it is a fact, there is no doubt—that our biodiversity has decreased very sharply in recent decades and continues to go down. That is why our goal is to bend that curve so that, instead of going down, we start to increase biodiversity.

At the same time, the UK is, I believe, doing more work internationally—not just by wagging its finger but through example—than any other country in the world. If you compare what we are doing on nature with, for example, what is proposed by the new Administration in the United States or any other country in Europe, I would say that we are miles ahead in our ambitions and in what we are doing with our international climate finance and ODA. We were the first country to deal with things such as our fossil fuel subsidies and our land use subsidies. Our campaigns internationally, not least the 30by30 initiative, are changing the debate around nature. I am very proud of where we are in the debate but, like everywhere in the world, we have an enormous amount of work to do to translate that into action on the ground.

My noble friend’s second point is very interesting, and one that I shall have to come back to him on for any details. My only observation would be that a proper net gain project is not going to be about one species, it will be about the habitat that supports that species. Even if climate change were to render the conditions too difficult for that particular species, you will not have no gain—you will still have gain on that side as a consequence of the habitat improvement. He raises a very interesting point; it is one that merits thought and I will think about it.

[Lord Lucas (Con) [V]]

My Lords, I am very grateful to my noble friend for his comprehensive replies, but there are a number of areas I would like him to expand on—if he chooses, by correspondence. In the case of the first, it may be best to have an online meeting, should that be possible.

I would really like to walk through with him what happens if we have a medium-sized housing development with on-site diversity gain and, 10 years later, someone questions whether that gain has been maintained, or even achieved. What information will be available to that person? How will they, in practice, be able to challenge it? Exactly what will that information look like? Professional good practice guidelines do not seem a very strong basis for challenging whether something comes up to standard; they are pretty woolly at the moment. Will something be set that can actually be judged against?

If there is a question over whether the gain has been maintained, who will be responsible for taking action? How can an ordinary citizen kick them into taking action? Where, in practice, will the money from a housing estate of maybe a couple of hundred houses be extracted from to make good the lack of performance? How is this actually going to work? As I said, this may be best dealt with as a meeting, but if the Minister chooses to burst into print on it, I shall be delighted.

Secondly, can my noble friend share with us his concerns about perpetuity rather than 30 years? There are lots of aspects of land where perpetuity is normal. No one expects to get out from under an SSSI or building listing, and I do not expect to get out from under the covenants that apply locally to the Duke of Devonshire. Those go with the land and one expects them to be there forever. If one has made improvement to the biodiversity of a piece of land, maintaining that forever or compensating for a failure to do that by providing additional biodiversity elsewhere or onsite seems to fit well with perpetuity, and I cannot comprehend where this opposition is coming from in practice. We are all [Inaudible].

Thirdly, can the Minister answer on whether the biodiversity gain in a particular development will be linked to the local nature recovery strategy or be independent from it, and if it is linked, how does it work?

Lastly, I should be grateful to understand the Minister’s response to the letter that the department has received from my right honourable friend Bim Afolami.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

Minister, I think that it is your turn now.

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Moved by

[Lord Lucas]

205A: Clause 95, page 96, line 18, at end insert—
“(1ZA) Such consideration must include consideration of empowering relevant civil society organisations to further the general biodiversity objective, in particular by breeding and releasing native animals.”Member’s explanatory statement
The purpose of this amendment is to enable discussion of how the regeneration of the populations of those insects and other animals that have become locally or nationally extinct can be sped up.

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[Lord Lucas (Con) [V]]

My Lords, in addition to moving Amendment 205A, I shall speak to the other amendments in the group.

If one is setting out to restore nature in a bit of the countryside, it is dead easy to restore the plants. Almost every native British plant—certainly all the common and half-common ones—are available from a number of seed sources. All you have to do is plant the seeds or, if you are that bit keener, to grow the seeds on in the garden and then plant out plugs. There is no difficulty in doing it and no laws against it. It is a process widely used to bring nature back into farms, and we are all used to it.

When it comes to animals, it is much harder. Of course, some big animals introduce themselves. I do not know any way of keeping a fox out of a bit of territory, and mice and similar mammals seem to move pretty well. But when it comes to glow-worms, crickets, soil animals generally and even lizards and frogs, that is not the case. These animals just do not have the ability to move across gaps in countryside. They have not evolved a widely mobile strategy. If I want glow-worms back somewhere, I have to put them there; they will not come to me.

The BBC celebrates, as do I, a glow-worm reintroduction process under way at the moment to add 500 glow-worms in two sites over two years. That is ridiculous. It is a pathetic level of ambition. We ought to be distributing millions of glow-worms to tens of thousands of sites to get a decent effect on nature and to get things back to where they should be if we had looked after nature.

This sort of process absolutely needs to be properly controlled, which is what I am trying to achieve through the amendments I propose. We need not small, underfunded, academic efforts to introduce one or two little bits of nature back but something much larger, more widespread and popular. We do it for plants; we ought to be able to do it for animals. That is what I aim to do in Amendments 205A and 257D.

Amendment 253 looks at land that has been seriously rewilded and asks whether we can take that rewilding just one bit further. If a rabbit or deer dies in a rewilded estate, the carcass lies where it is and is consumed by whatever carrion eaters are around, be they beetles, fungi or birds, but that is not true of the stock used to maintain the landscape within a rewilding scenario. If a sheep or cow dies, the carcass has to be removed. If we want the rewilding to be truly natural, we ought to explore the possibility of leaving that carcass to be consumed in a natural way.

This is already being done in Holland. A month ago, I sent my noble friend some detailed information on what happens there. I would very much like the opportunity to explore with him whether this might be a relaxation we can bring into the UK. Again, things need to be done in a controlled way. You do not want an animal with a serious disease left out as a carcass, but all that is required in Holland is a veterinary inspection. That seems to work well. I hope we can do the same here. I beg to move.

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[Lord Lucas (Con) [V]]

My Lords, I am always happy to receive a letter from my noble friend. I will address the subjects that I raise in these amendments in reverse order. I understand what he is saying about fallen stock, but I very much hope that the authorities in this country will take a careful look at what the Dutch authorities have done. They have proceeded in a very cautious and sensible way, and they have not encountered a great deal of problems. As I say, there is veterinary inspection of the carcass before it is left. It is not something done at random.

In any rewilding situation, quite a lot of large animals die naturally and are left naturally, because they are not part of the harsh, farmed population, as it were. This is not that big a step if it is done carefully. Perhaps it is something that can be done in small steps, so that we see how it goes, but we ought not to be afraid of creating a truly wild environment. As with the introduction of wolves or lynx, it is a decision to take carefully—I am not sure that the residents of Eastbourne would fancy having an eagle owl circling over their prams, but, none the less, it is something that we should think through and explore. In other parts of the world, we are encouraging people to keep tigers going; that is a different measure of risk that we are asking people to take. We ought to be conscious of what we are asking of ourselves compared with what we are asking of other people.

So far as dealing with common native species is concerned, yes, a thousand grasshoppers is wonderful, but why a thousand? Why not 10 million? That is particularly true when you are talking about things such as glow-worms and crickets, which really do not move far as adults, and where the larval species do not spread a great distance and are probably incapable of crossing a road, and so large areas of the country are—within our lifetimes and probably for several centuries—effectively inaccessible to natural rewilding and natural reintroduction, however many natural corridors we introduce. Where species are known not to be a danger to ecosystems and are a natural part of ecosystems where they exist, and the problem is that we have wiped out most of them, we really ought to do something about that. The key is allowing breeding on a large scale. This will not happen if we restrict it, as I say, to academic exercises that think we should celebrate 500 glow-worms or a thousand grasshoppers. That is not the level of challenge that we have.

I agree that we ought to move carefully: we ought to move with advice. None of this should be done without, say, the local wildlife trust saying: “Yep. Okay, we’re happy with that”. Any organisation involved in breeding ought to be carefully supervised. We need to get the public involved in these things and allow them to say: “I want lizards in my garden”, “I want a slow worm in my garden”, or “I want to see glow-worms in the park when I go for a walk at night. Can I have that?” The way to get nature back on the scale that we need is to say okay, let us do that. I very much hope that the species reintroductions task force will bend its mind to that at some stage. For now, I beg leave to withdraw the amendment.

Amendment 205A withdrawn.

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[The Earl of Caithness (Con)]

My Lords, I listened with care to what the two noble Baronesses have said, and I support their arguments. They made some very valid points.

I am speaking to my two amendments in this grouping. Amendment 210A simply requires that Natural England has particular regard to nature-friendly farming. It has to

“have regard to … local nature recovery strategy, and … any relevant species conservation strategy or protected site strategy prepared by Natural England.”

One thing that has been missing in a lot of our debate over six days is the role of the human being in all this. We have talked a lot about biodiversity and what we can do to increase it, but what matters just as much is the role of the farmer and the landowner, because they are going to implement the policy. I was thrilled when my noble friend Lord Goldsmith, said on the amendment we have just discussed on biodiversity net gain, words to the effect of: “We are able to farm in a nature-friendly way.” I thought: “Good. My noble friend and I are on the right track together.” It is hugely important.

At the moment there is a Nature Friendly Farming Network that thousands of farmers have joined; it is doing tremendously good work for the environment at very little extra cost to the taxpayer—and sometimes at a cost to their own pockets. These are exactly the sort of people we need to encourage. The farmers are not particularly pleased with this Government at the moment. There is far too much uncertainty and change and, as we all know, the age of the average farmer is so high that they are finding it hard to adapt to all the pressures. I was really pleased by what my noble friend said, and I hope he will consider the amendment about biodiversity. The Bill cannot just be seen in isolation. We have to involve the human being—the farmer and the landowner. They are the people who will alter things on the ground.

Besides the Nature Friendly Farming Network, there is of course the Game & Wildlife Conservation Trust. We often talk about the UK being a world leader. We have on our own shores a world leader in this organisation. It has demonstration farms in Scotland and England, and has farmed for biodiversity for many years. It advises individual farmers and clusters of farmers, and does an awful lot of work for Defra. I urge my noble friend to visit its Allerton project. He and I have spoken about this before. The work and scientific research it does are so important. We cannot now take for granted everything I learned when I was a boy and a young man, working on the farms and the land. To convince the rest of the country, we have to have it scientifically proven. This is what the Game & Wildlife Conservation Trust has been doing so well. I hope that my noble friend, besides talking to us, will spare time between now and the next stage to visit it in Leicestershire. It would be an easy half day for him, and I think it would be very beneficial.

I turn now to Amendment 293, to which I am a signatory. It is in the name of the noble Baroness, Lady Young of Old Scone, and is on a subject that both she and I have been going on about for quite a long time: the land use strategy for England. Perhaps we need no better excuse for introducing this amendment than what the noble Baroness, Lady Parminter, said about Horsham District Council and the problems it faces. I have said it before, and I will just briefly repeat myself: the Climate Change Committee reckons that we will have to transfer about 21% of our agricultural land out of farming. To feed ourselves, we will have to increase productivity by 10%. We all know that productivity has been flatlining in agriculture for many years, so this is going to be a hugely serious problem to try to tackle.

The noble Baroness, Lady Young of Old Scone, will wax much more lyrical than I will on this, so I will not say very much except that it is again about the human input into this. There are so many pressures now on the countryside: the building of new railways, new developments and housing schemes and, I repeat yet again, the threatened planning Bill, which is coming our way next year. That frightens me because it will undo quite a lot of the good in this Bill and in our climate change agenda. We will have to support these farmers and accept that they have got to increase their productivity.

We have talked about land being lost for biodiversity net gain. That is another pressure on the countryside. Surely, it is high time that England followed the lead of the other countries in the UK—Scotland, Wales and Northern Ireland—in producing a plan of how it will use the land. It is the only way that we will make progress in a sensible way without having constant fights at all levels. We need a strategy from the Government: should we actually be farming our grade 1 Lincolnshire fen farms, which we are told have very few harvests left? Every time they are farmed, they are perhaps one of the greatest emitters of carbon in the agricultural sector. It is a terrible thought that our grade 1 land might not be farmable or should not be farmed, but we need to address that now before it is too late. I therefore give my full support to the noble Baroness, Lady Young of Old Scone, to get a land use strategy for England.

[Lord Lucas (Con) [V]]

My Lords, I am delighted to be part of this group and to be supporting the noble Baroness, Lady Parminter, in her Amendment 209. If we are to have nature recovery strategies, they have to be followed. I touched on this in a previous group in relation to biodiversity gain and planning consents. If that great source of nature improvement is done willy-nilly, with no reference at all to the nature recovery strategy, what is the point of the nature recovery strategy? This is one of the main ways in which things are going to improve. Why is it disconnected? Amendment 209 from the noble Baroness would reconnect it and other things in a most useful way.

My own amendments in this group are aimed at seeking remedies to things which seem to me, from my experience locally, not to be working as well as they might be and which could be made to work better, under the structures proposed in this Bill, with a bit of additional power. First, I observe that, within the land owned by the local council, there are substantial SSSIs which are supposed to be chalk downland and which are actually largely bramble. How has that come about? I think it has come about because the negotiations on what should be done are conducted between a council that is extremely willing but short of money and Natural England, which understands that and does not see the purpose of pushing a long-term relationship harder than it reasonably can. The net result is that things go gently backwards.