Land Use in England Committee Report

Lord Moylan Excerpts

Tuesday 25th July 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, it is a pleasure to speak after the noble Lord. I feel something of an interloper speaking among the many noble Lords who have contributed to the work of this valuable Select Committee, but I do so because I have the privilege of chairing the Built Environment Select Committee, which has been looking at a closely related issue, the interaction of environmental legislation with government ambitions for housebuilding and infrastructure promotion. This has inevitably drawn us, of course, into questions of land use. It is our hope and our plan that we will publish our report in September or, at the very latest, in October.

It is not my role today to anticipate conclusions and recommendations that the committee might arrive at, but I thought it might help debate if I gave a flavour of some of the evidence that we have heard in the course of our inquiry. We have heard, for example, that 14% of the land in England is now effectively under a ban on any form of development, as a result of advice given by Natural England following a judgment delivered in the European Court of Justice in what is known as the “Dutch N case”, which relates to intensive farming in the Netherlands and its consequences for effluents into watercourses, particularly nitrates and phosphates. Although we have left the European Union, it is held by the Government, no doubt rightly—I am not a lawyer qualified to comment on this—that our courts would uphold that judgment if it arrived in front of them and that therefore, in effect, it applies to us. The Government, through the Secretary of State for Defra, have issued guidance to local authorities to adhere to the Natural England advice, with the result that there is, as I say, the ban that now exists, which affects housebuilding very seriously.

There is one mitigation scheme in place. I said 14% of England’s land: that includes 26 catchment areas and there is one mitigation scheme in place covering one catchment area. One cannot make use of it unless one is trying to develop in that catchment area, so there is a need for 25 more simply to meet that judgment. There is no timetable for delivering those 25, so there is a complete ban on housebuilding and development, in practice, in those areas. We could, of course, now that we have left the European Union, change the law to amend that. I would be interested to know from my noble friend when he comes to speak at the end if the Government plan to do that, because it has been hinted at in the press, especially in the last few weeks. In particular, does he intend to use the Levelling-up and Regeneration Bill as the vehicle for doing that, or does he anticipate separate legislation?

I come now to the question of biodiversity net growth, a consequence of the Environment Act, I believe, which is going to come into force in October this year but is already being imposed by a number of local planning authorities in anticipation of that. Of course, the requirement for 10% biodiversity net growth as a result of development is a statutory minimum: there is encouragement to local authorities to ask for more. This has the effect, if it is delivered on site, which is the preferred outcome, of either reducing the land available for housing on site, logically, or, if it is to be off site, of sterilising land—sterilising is not the right word, but taking out of production land elsewhere that is to be used to accommodate the biodiversity growth that is needed to offset the development site. The result of this is that we heard evidence that housebuilders are already buying up land elsewhere in the country not for development purposes but with a view to closing down the farms that are operating on it in order to accommodate the offsetting measures needed either for nutrient neutrality mitigation or to accommodate biodiversity net growth.

We heard evidence that for six houses, one needs approximately a hectare of arable land. Of course, it would be a smaller amount of land if what you were closing down was a pig farm or a chicken farm, because they produce much more effluvium. While that figure of six houses per hectare is a very rough estimate, we have had confirmation from other witnesses of numbers broadly in that sphere. So I would not hold myself to it as a precise figure, but it is an indication of the scale of land set-aside needed for this purpose.

We also heard evidence—here I will perhaps anticipate a conclusion, but I think one we have all reached—that the Government have not got a proper grip of this across the piece, as they say, and that there is a degree of tension between Defra and DLUHC in achieving the ambitions both for the environment, on the one hand, and housebuilding and infrastructure development on the other.

I will now make a few remarks on my own account and am no longer speaking for the committee. In these circumstances, the idea of a land use plan or a land use commission might seem very attractive; it might seem that we need a large, centralised direction that can bring everything together and make sure that we get the right outcomes. However, I have my doubts.

First, we must remember that we are fortunate to live in a country where the vast majority of land is private property, and private property is the basis of our liberties. The notion that we can go around directing people what to do with their land in the national interest effectively puts us on a wartime footing economically—except, rather than for the duration of the war, in perpetuity. I worry about that. I am not comfortable with it. There must be a role for the market here if we are to find a solution to this.

Secondly, and finally—I make this point very tentatively—I am not wholly persuaded that the correct and immediate response to all this is an institutional one. It is easy to think that, if one sets up a committee and makes changes to the institutions of government, one will get the outcome one wants. Even the noble Lord, Lord Cameron, spoke of a commission that would need to be so fleet of foot in constantly adjusting and changing in the light of varying national and international demands. We do not know of any such body in government that is ever capable of being fleet of foot; we know of bodies which set rules that become almost impossible to change because they each generate their own vested interests which battle to keep things exactly as they are.

I think that there is a solution of sorts. Although my committee will struggle to find a compelling solution, I think we will come up with an approach, in September or October, when we publish our report, but it will probably be more along the lines of time, patience and prioritisation in what we seek to achieve, rather than wholesale or even modest institutional change. Those are the key elements that we will have to focus on. As I say, I am not here today to offer a solution to a difficulty which this committee has so successfully put its finger on, and which my committee, to some extent, only supplements.