Contribution
My Lords, this discussion is the first chance that this House has had to really try to understand exactly how the Government intend to implement the new EDP process, which we debated at such considerable length during the Planning and Infrastructure Bill. As certain noble Lords have already said, these regulations give us very little clarity about the process. It was these Benches which secured at Third Reading of the Planning and Infrastructure Bill that there would be greater clarity from Natural England as to how it would prepare EDPs and prioritise actions to minimise the potential environmental damage by the developments resulting from these EDPs.
The negative statutory instrument laid in June talked about how Natural England had to take account of the mitigation hierarchy. However, there was the rider that it could do that only when it thought it was appropriate to do so, so it was almost a “get out of jail free” card. The issues which the noble Lord, Lord Krebs, and the noble Baroness, Lady Willis, focused on, on getting clarity upfront about the scientific evidence to provide the baseline environmental assessments, were not mentioned at all in those regulations and are not covered in the regulations before us today. Therefore, it seems that we will have to wait for the consultations on each individual EDP, as they come forward, to try to assess those critical environmental issues.
The noble Baroness, Lady Coffey, made a very important point: it has become clear that we are going to get only 28 days for each of those consultations—for that very complex job of understanding those environmental factors. That is something that we regret. We ask the Government to think again about limiting the public consultation on those EDPs to 28 days. Given that there has been so little detail in the regulations, it is necessary that we get greater clarity during the public consultation.
I have three substantive points of concern on the regulations before us. Like the noble Lord, Lord Roborough, but for different reasons in the main, I regret these regulations. The first point is that the levy can be paid in instalments by developers, whereas in the present system for developers that are bringing forward a development that will cause environmental damage, the payment and the environmental mitigation have to be upfront. In these regulations, the only tied-down part of the funding that the developer will have to produce is the first instalment. This was an issue that the Secondary Legislation Scrutiny Committee picked up and, as we have heard, it got a response that that was clearly around the issue of cash flow and the viability of buildouts and development. In a sense, that is understandable. However, we have seen in other areas, in which developers have argued about viability at later dates, that protracted arguments about funding constraints can lead to the environmental improvements that we want not coming forward. It is a concern for us that only the first instalment is fixed.
Secondly, as the noble Lord, Lord Randall, raised, there can be a reduced fee for developers if other sources of funding can be found. From my point of view, it seems that if charities or the public purse are funding environmental improvements in an EDP area, that means that somehow developers can get out of paying the amount that they should be paying. That does not seem right, and I would like the Minister to clarify exactly what funding they think this is referring to. Could it be funding coming from charities or the public purse, either through Natural England or through other schemes that the public purse is funding? In the end, it does not seem right that there can be reduced levies for developers if other actors are funding environmental developments in that area.
The third issue, which the noble Lord, Lord Roborough, raised and which I feel particularly strongly about, is that the Explanatory Memorandum to these regulations says that for some EDPs the levy will be mandatory. We have 16 EDPs that the Government have said they are producing, and it would be good to know how many of those they think the levy will be mandatory for, because it effectively kills dead the private market green schemes that are out there. I think none of us would wish to see that. Indeed, the Government have said they want to see a plurality of solutions to address the development and environmental challenges that we face.
During the Recess, I went down to the Solent and saw the very impressive nutrient management market down there which has been developed by a combination of the Wildlife Trusts and local authorities. The Wildlife Trusts bought up an intensively managed piece of land, stopped using fertiliser and sold credits to developers. That scheme has resulted in 2,500 homes being built in the Solent in an area where there are big nutrient problems. As soon as the EDP scheme was announced, that was put on hold and now has effectively stopped, and this is equally so—this will be of concern to the noble Baroness, Lady Coffey, and the noble Lord, Lord Fuller—for a scheme in Norfolk. Therefore, we are really concerned about the mandatory nature of this scheme. We need to encourage a plurality of systems, and these regulations do not do that.