Environmental Audit Committee
Oral evidence: Environmental compliance and enforcement, HC 1092
Wednesday 1 February 2023
Ordered by the House of Commons to be published on 1 February 2023.
Members present: Philip Dunne (Chair); Duncan Baker; Sir Christopher Chope; Barry Gardiner; James Gray; Helen Hayes; Ian Levy; Clive Lewis; Caroline Lucas; Anna McMorrin; John McNally; Dr Matthew Offord; Chris Skidmore.
Questions 1 - 48
Witnesses
I: Sir James Bevan KCMG, Chief Executive, Environment Agency; and Marian Spain, Chief Executive, Natural England.
Witnesses: Sir James Bevan KCMG and Marian Spain.
Q1 Chair: Good afternoon and welcome to the Environmental Audit Committee for an unusually regulator-rich session this afternoon. We have two panels with the chief executives of the two primary regulators within the environmental sector, and then a panel thereafter with the Office for Environmental Protection. I would like to welcome, I think for his farewell appearance before the panel, Sir James Bevan, the Chief Executive for the Environment Agency, and Marian Spain, Chief Executive of Natural England.
You come before us on quite a big day for the environment with the statement that we have just had from the Secretary of State on the Environmental Improvement Plan. I note in it—I am just trying to find the reference and I could not in the moment when I was looking—there is reference to looking at the environmental regulatory framework. I will ask you, Sir James, to start with, to give us your impressions, as you come towards the end of your time in office, of whether the framework that you operate within is fit for purpose.
Sir James Bevan: Thank you, Chair, and good afternoon. First, what I will say is that the right regulation is not red tape; it is what gets you a blue planet and green growth. Good regulation—and we try to be good regulators—is proportionate, outcome-focused, risk-based and does not just protect the environment, but helps businesses to thrive.
My lesson over the last seven-plus years is that regulation works where you have a robust regulatory framework and the right resources. Where you do not have those things it is much harder. I am sure you want to talk about both of those.
To give you some examples of where it works, I think the Environment Agency and the fantastic people who work for it are effective regulators, where we have those tools. I will give some examples. On greenhouse gases, since 2010 the emissions from the sites that we regulate have been cut by 50%. That is a major contribution to tackling climate change. Everyone cares about air quality. Since 2006 the emissions of very small particulates, PM2.5, which are the nasty ones that get into your lungs, from the sites that we regulate have been cut by over 60%. That is a massive investment in everyone's health. I am sure that the Committee will want to talk about water quality, but regulation has also cleaned up the coastal waters around this country and cut the serious pollution incidents that we are seeing. There is a way to go—of course there is a way to go—but I think, as I say, when you have the right tools and the right resources regulators can and have made good progress.
Q2 Chair: You are right, we will come on to questions about resourcing and some of the more specific details. Could I ask you about the analysis done by the National Audit Office for our benefit and what your takeaways are from what they found?
Sir James Bevan: I think it is a very good report. It is accurate and insightful and I commend it to anybody. I think it essentially makes the case that I am articulating to you, Mr Chairman, that where there are the resources and the right regulatory framework, and the Government have given us more of both of those things—more powers and more money, which is very welcome—we can make real inroads. We can arrest not just the decline of nature but we can turn that around and enhance it.
Q3 Chair: You have come under quite a lot of criticism during your tenure, most recently on water quality, which this Committee has taken considerable interest in, as you are aware, in particular for the reduction in enforcement activity or even testing activity on water companies. I do not want to steal the thunder of colleagues who are going to come on to this again later, but could you give me a précis of where you think the Environment Agency has not done its job properly? I appreciate that this is sensitive because you are under an investigation by the OEP, who we will be hearing from later. You probably cannot say anything with the OEP in the room and this is a public forum, which would compromise that investigation, but anything you can say would be very helpful.
Sir James Bevan: I think we can go, as you say, Mr Chairman, into enforcement in a bit more detail if the Committee want. Enforcement is a fundamental part of effective regulation. We have a sanctions and enforcement policy that is set out in public. We always start at the bottom rung of a series of increasingly robust enforcement steps. Advice and guidance is our first default if we think that an operator is not abiding by the regulations. We will then go through a series of increasingly robust interventions up to and including prosecution, if we think that is necessary. We use all of those, including most of those against water companies. Where we use them they are effective.
We are doing fewer prosecutions than we a decade ago. Some of that is because we have a range of greater options, one of which is the so-called enforcement undertaking, where an organisation that has breached its permit or the terms of its regulatory requirements but not caused serious harm may offer to remediate the damage and pay for that. That is a good alternative in the right circumstances to taking that company to court because it is quicker and it puts money straight back into the environment rather than, as would have happened, the Treasury. That is one reason why we are doing fewer prosecutions.
We are doing fewer prosecutions because we are deliberately trying to be strategic about who and what and when we prosecute and focus on the big issues and the big causes of the greatest harm. That is a deliberate strategy. But back to resources, we are also doing fewer prosecutions because the amount of funding that we have available to do those prosecutions has gone down over time.
If you look at the sites that we regulate and ask how many of those are abiding by our regulations, the answer is almost all of them. It is something in the high 90% of the sites that we regulate that are abiding by the terms of their permit. I would not want the Committee to think that the Environment Agency has lost control of those we regulate; we have not. Most of them abide by the law, and rightly so.
Q4 Chair: Can you explain the difference between those that you regulate and those that you do not? I thought you regulated the whole sector.
Sir James Bevan: We regulate pretty much all—there is a whole range of sectors that we regulate. We regulate the water and sewage sector, as you know, the energy sector, and a lot of industry. There are some farming activities, like intensive pig and poultry farming, which because they pose a particular threat to the environment require an Environment Agency permit and are robustly—and I would argue effectively—regulated, but most farming, as such, is not regulated as farming. You will know, Chair, as you are a farmer yourself, that some activities that many farmers conduct are regulated. We have fewer regulatory handles on farmers but we are using the handles that we have, and we are increasing the oversight that we are giving to the farming sector. The Government have funded us to put more boots on the ground and do more inspections of farms, in particular, to make sure that the diffuse pollution that we see from farms is not getting into our water courses and causing pollution there.
Then there is a whole category, finally, of activities that are completely outwith the regulatory framework and the funding that we get with that framework, and some activities that in law do not require regulation. There are some waste activities, for example, that have low risk that only require an exemption. The waste operator simply has to notify the Environment Agency that he is doing what he is doing, and there is no regulatory framework around that.
The most glaring example of activities outside regulation is crime, and waste crime in particular; by definition those people are not within a regulatory framework. We are doing what we can to bring those people to justice, but again that depends on the powers and the resources that we have.
Q5 Chair: Reverting to water companies for a moment, that is a regulated sector. Before your time the Environment Agency decided to allow water companies to self-monitor the discharges from treatment works, in particular. Do you think that was a mistake?
Sir James Bevan: Operator self-monitoring, as it is called, is not confined just to the water sector. It is used across most sectors that are regulated, and not just by the Environment Agency. I think there are decent arguments for operator self-monitoring. The least good argument is cost. I think that polluters should pay the cost of their activities, and therefore water companies that risk pollution should be paying the cost of monitoring.
The better argument I think for making water companies self-monitor and report the result is that that forces the water companies to treat protecting the environment as a core part of their day-to-day business rather than an add-on that the Environment Agency is going to come and make them do.
On getting that into the mainstream of the water companies, I like operator self-monitoring. It is not, though, enough on its own. We check that data and we have some quite sophisticated ways to check that data. We do a lot of our own monitoring, which also gives us the data, and we get data from third sources. Put together, operator self-monitoring plus the Environment Agency monitoring plus third-party data, I think gives us the data we need to be effective in regulating those companies. We have, of course, as you know, enhanced our datasets by requiring the water companies over the last few years to put monitors on every single one of their combined sewage overflows. You have been instrumental in that too, Chair. Now putting monitors on every single one of their sewage treatment work will give us even more data with which to regulate.
Q6 Chair: Marian, if I could turn to Natural England for a moment. The EIP yesterday brought in a very significant number of additional nature-based things to monitor and to set targets. Could you give us a sense of what additional burdens this is likely to place on Natural England, because much of this regulation will fall to you?
Marian Spain: I would not use the word “burden”. I think we welcome a lot of the new measures in the EIP. We welcome the fact that it recognises the need for integrated action on the environment. That is one of the key points. I will return to that in a moment, if I may, with the thought this is not all just down to Natural England. This is a nature-based plan that requires action from James and his colleagues but across Government and DEFRA. That might be a theme we want to explore.
For Natural England it gives us three things. There are new duties coming our way on the back of the recent Environment Act, so we will have new instruments to use, such as local nature recovery strategies and biodiversity net gain. We have new resources for those. Our spending review settlement last year explicitly recognised those as new roles for us. But I think it also helps reinforce the importance of our existing roles, particularly as a nature regulator, and we have again had more resources for that over recent years. I think it is a matter of record how low our resources were at, and that is one of the reasons some of our regulatory functions have not been exercised as well as any of us would like. We welcome the plan and the direction of travel.
Perhaps I might continue on the theme of us as a regulator. It is interesting listening to James, and I had 10 years at the Environment Agency so I have some experience of that side of things. We do not necessarily use regulation as our primary tool to deliver, for three reasons. The main reason is nature regulation is far more limited than you have just heard James describe the level of regulation for other environmental issues. One way of thinking about that is only 8% of England is an SSSI, and that is the only place in which the vast majority of nature regulation applies. We do not think we can do our job and meet the very important targets in that plan just by thinking of ourselves as a regulator.
The other thing: if you asked a Natural England member of staff did they think of themselves as a regulator, they might not because we tend to not think that. We do not use regulation as the principal means of delivering outcomes. We use advice, financial incentives and a range of other issues to achieve environmental outcomes. I think the plan gives us some new tools. They are not necessarily regulatory tools but they are very important tools to add to the mix.
Q7 Chair: You mentioned biodiversity net gain. Obviously this is new. Can you outline how you anticipate Natural England helping land managers? I should thank James for disclosing my interest in this as a farmer. How do you envisage that working and measuring what happens on the land before and after the net gain proposal?
Marian Spain: The first thing to say is that local planning authorities will be—if I dare use the word—the regulator for biodiversity net gain. It will be them that agree with the developer the net gain that is to be delivered and they will have the primary responsibility for ensuring it is being delivered as part of a planning condition. Natural England are expecting to play two roles on behalf of Government. One is to maintain the statutory register of where offsite net gain has been created, and that is a form of assurance and transparency so that people can be confident that those sites are being maintained as they would. We are also expecting to play a role as a backstop to the system, as being the place in which developers can also secure statutory credit. If they are not able to deliver their own net gain there is a hierarchy and, at the end of that hierarchy, they are able to buy into a pot. We are expecting to deliver that pot on behalf of DEFRA and use that funding to fund nationally important nature projects. We have that semi-administrative regulatory role.
The other very important job that we will do is through our farm advisers—our people who are out and about. Their principal job is to inspire and enable land managers to take action for nature, and net gain will be a new tool for them to offer. They will be able to work with the farmer or any land owner—not just farmers; anybody who owns land—and offer them a new range or a different solution to finance nature. At the moment we tend to direct people into local environmental schemes. We are increasingly directing people into carbon offset-type schemes and net gain will become one of those.
Of course, you will be aware that net gain is operating already in a number of local authorities before it becomes mandatory, so we have a few years of experience of seeing how that works.
Q8 Chair: A final question before we move on. You will not be operating as a broker, as such, will you? Or do you see the regulator can also act as broker between a developer and a farmer?
Marian Spain: I think it might depend on what you mean by “broker”. It is not the word I would use but I certainly think we see our job as enabling and perhaps introducing. I think it is unlikely we would act as an intermediary between an individual farmer and an individual developer because that is not how the system will work. In many cases where a developer is looking to mitigate offsite they will work with the farmer. But as I mentioned earlier, we may have a role in suggesting to the farmer that that is a mechanism he could consider and giving him assurance that it is a valid mechanism—a safe mechanism.
I think that other role I mentioned of us looking after the national statutory credits on behalf of Government is where we are more likely to work. Perhaps an example of how we use that is we had a live example of that already before the scheme becomes statutory. We have a project in Norfolk, in Wendling Beck, which is a major nature recovery project, with a number of big estates, farms and other landowners coming together, and that is the principal financing mechanism for that. It will match the Government’s new landscape recovery budget. That will be our role in almost blending these different sources of finance in an area not necessarily on an individual farm.
Q9 Ian Levy: I would like to touch on resources, and maybe start with Marian. Do your agencies have the skills and staffing needed to deliver the compliance and the work that you need to? Do you see that the EIP will significantly increase that workload?
Marian Spain: I think, yes. I have already said we definitely have new things to do as a result of the Environment Act, which are then reinforced in the EIP and their importance is enforced. I think I have said already we have had new resources to do that.
I will not bore you with numbers, but to paint a picture of what has happened in Natural England over the last three or four years, in my second year in post, I think, there was a recognition that we were unable or struggling to do our statutory duties to the standard expected. We had a small budget uplift, particularly focused on our work on SSSI planning and licensing where our customer service had fallen below what was acceptable. Then over the last two years, and for the remaining of this spending review period, we have had a quite significant uplift, or significant for Natural England, of £50 million or £60 million per year to allow us to take on those new duties as well as to allow us to continue to improve our existing services.
Q10 Ian Levy: Do you think that will be enough to?
Marian Spain: Have you ever had anybody sit before you and say they have enough resources? It is significant. Again, the other number I hold in my mind, Natural England has grown. When I started in my first year I had to cut the staff from 1,900 to 1,800. By the end of this year we will have nearly 3,000, so that is another sense of the pace of growth and change we have seen.
The question we will now start to turn our minds to, with our colleagues in DEFRA, is as we look ahead to the next spending review. The targets in that plan not only give us a hard numerical and time-stamped target, but are quantified enough, I think, for us to be able to better show where we need to uplift resources.
We are very clear: we have to up the pace and up the curve on all of those things. We will now be starting to turn our minds to what that looks like to make the case to the Treasury during the spending review for where we genuinely need more resources to hit those targets.
Sir James Bevan: Staffing is a challenge. I think it is a challenge for the whole of the public sector. We need people with high levels of technical expertise, which are marketable skills, for which they can get far more money in the private sector. Our staff have taken a real term significant pay cut over the last 10 years. A year or two ago we started to experience significant difficulties in recruiting and retaining the staff that we need.
The good news is that the Government have given us some more money, including to employ more staff to do the farm inspections that I referred to earlier. That is welcomed. We have now reached a point where we have started again to recruit more staff than are leaving. I think that we will get back up to the staffing levels we want. We spend a lot of time investing in the skills that our staff need. They have them but they need to keep those skills fresh.
On your broader question about resourcing the environment plan, the Environment Agency will be at the heart of delivering all of that, along with Natural England and all of our other colleagues. If you look at every one of the 10 goals in that plan, we will be doing substantial work to help deliver it. We are already resourced to deliver many of those things, which is good. We are talking to DEFRA, as I am sure are Natural England, about what further resourcing we might both need to most effectively deliver that plan over the next several years.
The final thing is that all of us are going to have to contribute to delivering this plan, so the agencies, the Government, but also private sector NGOs, farmers through the ELMS scheme, and all of us as individuals. I think if we put those collective resources together we have the resources collectively to deliver this exciting plan.
Marian Spain: If I may add a comment, just to echo what James said, I think that is the other issue for us—and I find myself saying this to a number of colleagues and partners recently. This is not just about what these two agencies have. I think it is about how Government use their other major budgets, the amount of budget still used in the farming pot, the amount of budget on forestry and flooding. That plan is a helpful way of looking at how we integrate the use of those budgets and how we look at expenditure across Government. This is a plan for other Government Departments as well who are also major landowners or major influencers of business and societal activities.
Q11 Caroline Lucas: I have a number of further questions on regulation for Sir James in particular, but before I get to that, perhaps I could go off the back of something that Ian asked. On your staffing, they have been on strike, or a number of them have been on strike, this past week and in a briefing that a number of us went to we were told that the average Environment Agency worker’s salary is now 20% lower than it would have been if it had kept pace with inflation since 2010. Do you have any reflection on that situation for your staff? They are massively hard working, they are the fourth emergency service and yet they are struggling.
Sir James Bevan: Thank you, Ms Lucas. Yes, I do have a reflection on it. That figure is accurate. Our staff deserve a fair pay deal because they do important national work, often at some personal risk, that makes a difference to 50 million people in this country. I know that some of them need a proper pay deal because some of our staff are using food banks. I also know, from the answer I have just given Mr Levy, that there is a massive operational issue here, which is not just for the Environment Agency but for the wider public sector. If we cannot pay our staff what we need to recruit and retain and motivate staff with the higher levels of technical skill and equipment we need, we will not be able to deliver all the things that we want to deliver, including the Environmental Improvement Plan. Ultimately, obviously that is a matter for the Government because we are bound, like Natural England and the rest of the public sector, by the Government’s pay policy.
Q12 Caroline Lucas: Thank you; I think it is helpful to get that on the record. My first question is: in June 2021 you pointed out that the agency had experienced a substantial cut in its funding in real terms since 2010 and you said you were expected to do more with less. Could you say a bit more about what impact those budgetary constraints have had on your capacity to ensure compliance and undertake enforcement activity? I think it is a 60% cut in grant aids since 2010, which is huge.
Sir James Bevan: I will not bore you with figures, as Marian said, but I will give you a few figures, which I think will help the Committee. For this financial year, the overall grant that the Environment Agency is getting from the Government is £1.172 billion—£1,172 million. That is a lot of money. Almost all of that is going into building and maintaining flood defences up and down the country.
The residual amount of grant that we are getting from the Government this year for all of our environment work is £142 million, of which about £46 million is so-called capital, which we are going to invest in things like water transfer schemes and the river navigations that we run. The key figure, the remainder, is so-called resource spend in Treasury speak, which is £96.5 million. That is the core environmental grant we get from the Government to deliver all the environmental outcomes that the EA is there to deliver.
You are right, Ms Lucas; over the last decade or more that core environmental grant has progressively diminished. It was about £120 million in 2010-11. It went down to about £55 million a year or two ago, so a very significant diminution. Good news: it has now gone up to nearly £100 million and we are grateful to the Government for increasing the grant. I can explain if you want what we are going to do with that.
To answer your question, the effect of diminishing grants has caused pressure on our enforcement function because all the enforcement and all the prosecution that the Environment Agency does, by Treasury rules, has to be funded by Government grant. We cannot fund it from the income that we get from charging companies the cost of regulating them.
Our ability to enforce and prosecute depends entirely on the size of the Government grant. Within that £96.5 million that we will get for our environmental work this year, £7 million is available for enforcement. £7 million, as a percentage of our total £1,172 million, is about half of 1% of our total grant income available for enforcement.
That has an impact. It has meant, as I said earlier, fewer prosecutions. It has meant fewer people out and about on farms, for example, to find out what is going on and address issues there. It has also had an impact on our ability to respond to environmental incidents. We get reports of about 70,000 environmental incidents every year. We can now respond to only the most significant of those, and we will always respond to significant incidents, but we are no longer funded to respond to the less serious ones.
All that is the bad news. The good news is for this year, and for the next two financial years, is that the Government have given us a significant uplift in the core environmental grant. It will stay at about £95 million, £96 million for the next two years and for this year. With that money, we have been able to do a series of things that will help us be more effective than we may have been on enforcement, including putting more inspectors on to farms and putting more people on to investigating what the water companies are doing in their sewage treatment plants.
Q13 Caroline Lucas: Trying to delve a little bit deeper into that, you were talking about more money coming in going forward, which is obviously very welcome, but looking backwards over the past five years, have the budgets of any of your divisions been increased to provide for additional regulatory activity?
Sir James Bevan: Not that I am aware. What has happened—and again we need to thank the Government for this—is we have been allowed to increase some of the charges on those we regulate. For example, we have put up the charges for water companies and waste companies. Again, under Treasury rules, we are only allowed to charge what we need to charge to pay the full economic cost of regulating those companies. We are not allowed, as I said earlier, to use that funding to enforce the regulations, but that additional funding has allowed us more monitoring of what the regulated industries are doing and some more staff to go and look and engage with those industries.
Q14 Caroline Lucas: Going back on that, am I wrong to suggest that funding for water quality work has increased over the past five years?
Sir James Bevan: Certainly overall funding with our income from the charges we apply to water companies for regulating them has increased over the last five years and that is welcome. We have had some increases, which I have just described, in funding for this financial year and the next two financial years, which will help us to address water quality, not just in with farmers or water companies but there are some other things that we are being funded to do that will also help. But the core funding for enforcement—and this is in the NAO report—has been dropping and is now £7 million a year, and that is obviously a tight settlement.
Q15 Caroline Lucas: Has there been any corresponding increase in Environment Agency staff deployed to investigate incidents where you have had more money?
Sir James Bevan: Again, the good news is that because the Government have given us more money for this financial year and the next two, we have been able to recruit more staff than we had, so we are now about 11,000 strong.
Q16 Caroline Lucas: But looking back at the last five years, has there been an increase in EA staff deployed to investigate incidents where you have had more money coming in?
Sir James Bevan: I do not think we have had a significant—I want to be careful not to get this wrong. There has certainly been no significant increase in the amount of resource or staff that we have had to do enforcement; that is enforcement and prosecution. There has been some increase in some staff numbers in some of the regulatory regimes that we oversee for water companies. That will have helped us focus on water quality. We have, as I have just said, got some very specific ring-fenced funding from the Government to put more boots on the ground on farms; 4,000 farm inspections a year, which we are now doing. That is a massive increase compared with what we were doing only two or three years ago.
Q17 Caroline Lucas: What is the agency’s current policy on attending reported pollution incidents? You indicated a moment ago that you cannot go to all of them any more because you do not have the staff to do it.
Sir James Bevan: We triage them. We have separated our incidents into a set of categories.
Q18 Caroline Lucas: Does the triage mean physical people going to a physical place and looking at it, or does it mean looking at it simply on paper?
Sir James Bevan: We triage incidents into category 1, 2, 3 and 4 in descending order of severity. All category 1 and category 2 incidents will be attended or otherwise investigated. It usually involves boots on the ground and will often be remediated. We will scrape oil out of the water; we will reoxygenate the water to stop fish dying, if the water is deoxidated. But the category 3 and 4 incidents, which are of lesser severity, which a few years ago we were funded to attend and did attend, we are no longer resourced to attend and so we are simply making what we think is a sensible choice.
Q19 Caroline Lucas: Do we know how rigorous that assessment can be if you have not been able to go there? The concern is the potential severity of pollution incidents. If you have not been able to deploy an agency officer to see with their own eyes, how can we be confident that something that you are judging to be a category 3 or 4 might not actually be a category 1 or 2?
Sir James Bevan: It is a good question. It is a judgment call for our officers, who are very good at identifying what they think may or may not be a serious incident. I am pretty clear that if there is doubt about the severity of an incident we will go and check it out.
Q20 Caroline Lucas: Are you aware of examples where you thought from a desktop analysis that it was going to be a 3 or a 4 but it has subsequently turned out to be a 1 or a 2?
Sir James Bevan: No, I am not. But a final point is that just because an incident is categorised as a category 3 or category 4 does not mean we do not do something about it. Even if we are not able to deploy people, we will often log it. We may call the water company if it appears to be an incident to do with sewage and ask them to go and investigate. There are other ways in which we will act on those incidents and all of that data we assess at the end of the year and use it to inform our regulatory approach going forward.
Caroline Lucas: Do I have time for the last one, Chair?
Chair: Very quickly.
Q21 Caroline Lucas: What measures do you use to determine whether the condition of the environment that you are monitoring is improving or deteriorating, if you are looking at water quality as an example?
Sir James Bevan: There are a whole bunch of metrics. Obviously for water quality, the water framework directive is the key metric. For air quality there is a bunch of other metrics, which we use as part of the regulatory framework. They are all very specific and part of our corporate scorecard, which we publish every quarter online, which details the main metrics on each of these issues like water quality and air quality.
Q22 Caroline Lucas: You are not aware of an indicator, for example, around kilometres of water body enhanced and protected?
Sir James Bevan: I am. That is one of our major key performance indicators. We measure every year how many kilometres a year of river or other water bodies we have enhanced. That does not just mean improving water quality, although it can mean re-straightening or re-wiggling rivers that the Victorians engineered into straight drains. It can mean removing obstacles to allow fish passage. The range of interventions that will improve—
Q23 Caroline Lucas: Is it as strong, I guess is what I want to say? Sorry, because I appreciate I am taking up too much time, but is it as strong a measurement as previous assessments based on the water framework directive?
Sir James Bevan: It is different. They are both important. The water framework directive is the law and we regulate according to the—
Caroline Lucas: You do not think there is a weakening by looking at them?
Sir James Bevan: We can talk about the water framework directive if you want. I have views. The water framework directive is a fundamental part of our law, which we regulate and try to regulate effectively, and is an important way of assessing water quality. We must not forget that, but it is not the full story and it can be misleading just to focus on the water framework directive. You need to look at other indicators, which is why this corporate scorecard indicator is a broader measure. It includes some of the water framework directive data, but adds other ways in which we think we have improved.
Caroline Lucas: It does not weaken anything?
Sir James Bevan: No, it is not supplementary and complementary to it.
Q24 Anna McMorrin: Turning to your views on the water framework directive, in August 2020 you suggested that the directive ought to be reformed to remove the “one out-all out” rule. Is this still your view?
Sir James Bevan: Short answer: yes. Slightly longer answer: there is a process, as we know, to review all inherited EU legislation. The Government have a Bill in the House. I think that is an opportunity to improve environmental outcomes and there will be some bits of legislation that I think we can do without. I am on record as identifying some of them; the floods directive is one. There are some bits of legislation that I think we definitely should hold on to, and the bathing waters directive, which is to deliver much cleaner coastal water, is one that I would argue you should keep. There are some that we could do better in outcomes by reforming, including the water framework directive.
First, these decisions are for the Government not me and, secondly, this is my personal view. There is a range of views inside the Environment Agency about this issue, which is fine. But I believe in what I said in 2020, which is, as I was saying to Ms Lucas, while there are lots of fantastic things about the water framework directive—the fact that it sees a river system as holistic, the fact that it was written mostly by British officials and the fact that it does set very high standards—there are things about the way it works that are misleading because it has this “one out-all out” rule, which means that if a river fails on one indicator it fails on everything, whereas in fact although only 14% of our rivers are in good status, about 80% of those individual elements in our rivers are in good status. It is misleading about the state of our rivers. I think that is wrong because we need to start this debate from the evidence.
It also has a tendency to push regulators and resources to areas that might not be the best use of their limited resources. For example, one of the tests is morphology. Is the river in its natural state? Many rivers in many of our cities, including this one here, are not in their natural state and never will be. If we spent all our time trying to get that bit of the river in their natural state we would fail to focus on other things that would improve water quality.
Q25 Anna McMorrin: How would reforming these regulations impact the agency’s capacity for ensuring that compliance?
Sir James Bevan: As I say, this is a debate that I think we should have. I do not have all the answers but I think we should have the debate. The test should always be better environmental outcomes. It is not about a race to the bottom—better outcomes. What I would like to see is, looking at the water framework directive, whether, first, we can reform it in such a way that, again to Ms Lucas’s point, it gives a more accurate picture of what is really going on in our rivers because it is more complicated than the debate currently understands. Secondly, it helps us and other regulators direct our resources and our attentions to the things that are going to make the biggest difference in the quickest time to the water quality, because we are all clear it needs to be better.
Q26 Anna McMorrin: Have you made representations to Government Ministers on these views and specifically your views in reforming this “one out-all out” rule?
Sir James Bevan: My views are on record and Ministers may or may not have read them.
Anna McMorrin: That is different though to making representations.
Sir James Bevan: The answer is that I have not had a direct conversation with Ministers about this issue, but I have said to Ministers that I think this is an opportunity to reform a lot of our legislation to improve environmental outcomes. The Environment Agency, as an organisation, is involved in working with our DEFRA colleagues and others across Government in the exercise to look at our retained EU legislation and identify which we should retain, which we should repeal and which we should reform. As part of that, I am sure that we will be making views on the water framework directive known.
Q27 Anna McMorrin: Just to confirm, you do want to see Ministers using their powers under the proposed Retained EU Law Bill to do that?
Sir James Bevan: I agree with what Government Ministers have said, including the Secretary of State, Thérèse Coffey, that their aim is to come out with enhanced environmental outcomes. I see this as an opportunity to do that.
Q28 Chair: Before we come to some questions to Marian, I have a question about innovation and the extent to which the EA acts as a spur or a break on innovation. Looking at the work that we did on water quality, I have had representations from companies that have monitors, devices to fix leaks, and treatments for water to clean up water bodies. Each time people tell me the EA is not allowing them to even test their equipment. How do you respond to that and how important is innovation, as technology evolves quite quickly, to help you with your cause?
Sir James Bevan: First, innovation is essential to deliver the outcomes we want and all good organisations are constantly trying to improve what they do and how they do it. The Environment Agency does seek to improve what we do and we are open to all sensible suggestions. We use some quite innovative technology. A couple of examples are on waste crime, we now fly drones with heat-seeking cameras over remote farms and use the technology to look through the walls of those barns and identify what is in them. Not over yours, Mr Chairman, as far as I am aware.
Chair: We have nothing to hid.
Sir James Bevan: Sometimes what is in those barns is thousands of tonnes of illegally-piled waste. That is a sensible thing to do because it is cheaper, quicker and safer and some of our staff are exposed to severe risks. That is one example of where we are being innovative.
Another one that we are looking at in the water area is using satellite imagery to identify the moisture content of fields in crops. For example, when there is a drought, as there has been this summer or last summer, that will enable us to identify where water is being used and to identify whether that water is being used in contravention of the abstraction licence that the landowner may have. That will enable us to go and ensure that the regulations are followed.
We are very open to innovation. If there are specific examples where you or your colleagues think we have not been open, send them to me and we will have a look.
Chair: I would be very interested if you could indicate, if somebody has a project—this may be an open invitation to every inventor to send you something so I do not want you giving me the name of someone on air, but if you could write to the Committee and indicate how somebody accesses the EA to get something approved that would be very helpful.
Q29 Duncan Baker: These questions are to you, Marian. Last year the Nature Recovery Green Paper suggested that all current sites and species protection, so taking SSIs and special protected areas, could be brought together in one merged legal structure. Is that something that Natural England supports?
Marian Spain: Our response to the Green Paper is on record. Our view is—and I am going to echo something James was saying a moment ago about some of the European legislation—there are opportunities to reform that but to strengthen and improve its effectiveness. I am trying not to paraphrase what James was saying but I think there was something about—and your question is in that context, isn’t it?
Duncan Baker: Yes.
Marian Spain: I think our starting point is that we need to continue to have a system in which we give very high levels of protection to our most important wildlife sites, with a very high bar for anything that actively chooses to change them and very high penalties for any change that is illegal, if I can put it that way. We think there should be a very high level of protection.
We do not have a fixed view on whether we need or want tiers; there are complexities in the current system. We have SSSIs that are layered with SPAs on top that can be confusing. I think for us the system is simple and clear but certainly does not diminish the level of protection. If there were to be one level it would need to be the highest level.
Q30 Duncan Baker: How would having these varying levels of protection within that mechanism work in practice? The concern is that you may well have special protected areas mixed in with SSIs. I have a further question that I want to come to afterwards, just particularly on what you have said about wanting to have a very high level of protection. There may well be gaps where there are certain areas that are just being left behind and not protected at all.
Marian Spain: There is a lot in that question, so stop me if I say too much. One of the additions that we would like to our current regime—at the moment the regime of designated areas as we have can occasionally lead to consequences. They further nature protection but not necessarily nature recovery. For example, if there is the need to mitigate the impact of damage, we tend to be driven to looking at that mitigation simply within the site rather than looking across a wider landscape.
There is a live example of this being debated at the moment in the energy Bill about offshore wind to allow that mitigation[1] to take place across a much wider area and look at the whole ecosystem. That is one challenge that we have with some of our terrestrial designations at the moment. They sometimes require us to look in and make a decision that has an impact but is not necessarily as impactful.
The second issue that we need to look at is your point about the gaps between them and how we can think of a continuum of nature protection and nature restoration rather than the slightly binary system that we have at the moment that, “This area is protected and this isn’t,” and there is therefore a hierarchy. That is again a sense of what we mean by being able to reform. The Environment Act brings in the concept of protected sites and protected species strategies and that takes us a step further to be able to look across an ecosystem.
Q31 Duncan Baker: It does, but just take the last point that you mentioned. I live in North Norfolk and represent my home. If you have a site there with no TPOs, no planning permission, it is not an SSI, there are no protected species on that site, and yet it is a beautiful habitat for flora and fauna—it has been absolutely flush with wildlife for years and years, with thick undergrowth, brambles, a real habitat—somebody can come along and claim to make agricultural improvements, absolutely raze that to the ground and clear everything off the site. I have had your officers, who are doing an excellent job in looking at that site. I have had the Wildlife Crime Unit look at it. There is absolutely no protections whatsoever for that to happen. My deep concern is that there are real holes in what we are bringing in. In this specific example that I have dealt with recently, there is nothing that can be done to protect the wildlife on that site.
Marian Spain: I am aware of that particular case and it is an example of the comment that I made at the beginning of this meeting. At the moment nature regulation only applies to 8% of our land and some named species and taxas. The sites and the species are limited.
We have the Government’s international commitment that is again reinforced in the EIP, the Environment Improvement Plan, to move to a system where we have 30% of our land protected and managed. That does not mean that 30% would necessarily be designated to that very high SSSI standard. Again we have the opportunity not to think more of a spectrum, to have some very highly protected sites but also some sites where different measures apply. However, the case that you are referring to is that because it is not a protected site there is very little that Natural England can do as a regulator.
What we can do—forgive me if this is a very slight diversion—is something that, again, echoes a comment James was making yesterday about the differential regulations that apply to agricultural land. You will probably be aware that there are environmental impact regulations that apply to some sorts of agricultural land and apply to change to semi-natural habitat that has been in place for at least 15 years. Those regulations would require a farmer to seek a consent to make a change that would damage the semi-natural habitats on that site, but again that still only applies to a relatively narrow spectrum of land.
You are absolutely right that we do not have regulation to protect all of our wildlife. That is the point that I was trying to make earlier. That is why a lot of Natural England’s work is not about regulation; it is about engagement, advice and also looking at the business benefits of more nature on farms, for example.
Duncan Baker: Thank you very much. I am very glad my case in Cromer has made it on to the chair of Natural England’s desk.
Marian Spain: All letters from MPs make it on to my desk.
Duncan Baker: My constituents will know that I have been doing my job. Thank you very much.
Q32 Barry Gardiner: Sir James, can I come back to something that you said to my colleague Caroline Lucas? You said that you were not aware of any instances in which sites that had initially been categorised as 3 and 4 were subsequently upgraded, but in response to a freedom of information request, in fact there were 1,484 such sites from 2017 to 2021 that had been upgraded to sites 1 and 2. In November 2021 the Environment Agency decided not to send people out as a matter of routine to 3 and 4. Precisely the point that my colleague was making is that these sites, which would be upgraded if they were inspected, are not being inspected and therefore not upgraded. Do you not see that as a real problem?
Sir James Bevan: First, I have not seen the data that you are referring to and I was answering the question truthfully. I have not seen the data.
Barry Gardiner: I was not calling into question what you said, but your knowledge of the situation.
Sir James Bevan: On the broader point I would like to be able to put boots on the ground for every single reported environmental incident. In real life, given that we get 70,000 or 80,000 a year, for most that that does not make sense but the precautionary principle would suggest that it is safer to go and look than not. However, also in real life, like any other organisation, I have limited resources and I have to prioritise. The way that we are dealing with that is as I have described to Ms Lucas. As I said, it does not mean that we do not take action on category 3s or 4s. If we do discover that we have erroneously mischaracterised an incident, then of course we will go and look.
Barry Gardiner: Almost 1,500 incidents.
Sir James Bevan: I have not seen the data so I do not want to comment on the specifics.
Q33 Barry Gardiner: Once you have seen the data you could write to the Committee and give us your further thoughts on it.
Sir James Bevan: I am very happy to do that. However, the key point is that we are going to have prioritise while we are resourced in the way that we are. That is a rational and sensible thing to do. It is right to focus on the sites and the incidents where we believe, subject to checking, that there is the risk of greatest environmental harm or damage. We are right to go there and remediate that harm and damage. That is a choice that we have to make in the resource environment that we operate in.
The other thing that we are trying to do, though, is to prevent more of these incidents happening in the first place, including by putting in the additional money that I was referring to that we received from charge income for regulation, to ensure that the way we regulate reduces the risks of those incidents happening in the first place. That is some but not all of the answer, because most of these incidents will happen from operations that are not within the regulatory framework. That is an answer and at the moment the best one that is available.
Q34 Barry Gardiner: Thank you very much. Ms Spain, the 25-year plan committed to restoring 75% of SSSIs to favourable condition. EIP has just announced—forgive me for trying to get this right—an interim target of, “50% of SSSIs to have actions on track to achieve favourable condition by 31 January 2028”. There is obfuscation, there is gobbledygook and it appears there is DEFRA-speak. Can you tell me what “have actions on track to achieve favourable condition by 31 January 2028” means? Does it mean that the actions will be in place by 2028? Does it mean that the favourable condition will be achieved by 2028? Enlightenment, please.
Marian Spain: It is more the former than the latter. It is action in place.
Q35 Barry Gardiner: How much action? How effective action?
Marian Spain: I am pausing to think how much shall I tell you, how much shall I explain.
Barry Gardiner: I was delighted when you said that we want clarity here but this is anything but clear.
Marian Spain: There are two or three ways that I can answer that question. You can probe more if I have not said enough. The first step for us—the bit that I have been most concerned about since I came into post five years ago and am now starting to see light at the end of the tunnel—is our lack of understanding about the condition of these sites. You know this, it is on the record. I should not call it inspection, but our rate of awareness, our rate of monitoring. The first step for us, that first interim target about the fact that all sites will have—I am going to misquote the target. I could look it up and quote it but you know what I am saying. Therefore, the first step is having more ability through our own staff, landowners, third-party organisations, cities and science and technology like remote sensing. The first step is to have a better knowledge of the state of these sites.
Barry Gardiner: At least line data.
Marian Spain: Absolutely, because it is through those assessments. We will not just assess whether they are in condition, we will have a much better idea of the actions to be done. That is one answer; that is part of the answer.
The second action is on the type of action that needs to be taken. What we currently know about SSSIs is that not all of the condition is poor because of things that are going on within the site. We do have cases where there is deliberate wilful damage by landowners. That is where we act. That is where we regulate legislation. You may be aware of a few cases recently where we have had prosecution and even an imprisonment for direct damage. There are cases when there is direct damage.
For the vast majority, though, it is a farming practice that has changed and is no longer achieving the right results. The appropriate action there is perhaps through an agri-environmental scheme not through enforcement or legal action. The other main factor—and this is where James and I become very close—affecting our SSSIs is some form of external solution, be that water or area, usually water or air. Again, the action needed to improve those conditions is not all within Natural England’s gift and we look to our fellow regulators to act and we look to our colleagues in the DEFRA farming team to provide the right incentives. That is another form of action. It is not as easy as Natural England going in and just doing something.
The final answer to your question, and the third part of that complicated, three-legged stool that I am painting, is that ecosystems take time to heal and to recover. It would be foolhardy to set a target to say that they will all be in good condition by that date, because it will take longer. However, we think that that target is good enough to show a move.
There is a parallel with the marine protected areas target that you may have looked at as well. Some people have been concerned that that 70% target is a stepping back. No, we think that it is a realistic one. That does not mean, however, that we stop when we get to 2028. We will put in place actions by 2028 that will start to move towards a favourable condition.
If I may make one final point, the other thinking that sits around that target is about how we prioritise which SSSIs we focus on. Where we are heading to is also prioritising actions that have broad environmental outcomes. We may take an action that improves the condition of an SSSI. In another SSSI we may take an action that is more along the lines of what James was describing for river quality and river status, for example. If we are able to restore a functioning wetland ecosystem, that will not only support the SSSI that may sit within it, it will also provide a better carbon sink, deal with water quality and reduce flood risk. Therefore, it is not quite as one to one as saying, “We’ll take action on this SSSI simply for the sake of the SSSI”.
Q36 Barry Gardiner: Over the past six years the record of Natural England on SSSIs has been very poor. In 2019 you ceased to monitor those protected sites. You said that that was partly from reduced capacity and partly, echoing what Sir James was saying, to this wonderful risk-based process. It has not worked, yet the EIP is saying that the interim target is to have an up-to-date assessment, you were saying to us, by 31 January 2028. Given that you have similar challenges with resourcing, given that you are maintaining the risk-based process, how can you be confident that you will have sufficient staffing and funding to deliver that monitoring programme at the scale that is required to achieve that?
Marian Spain: First, we have never ceased to monitor; we have done less monitoring. The reason that I am making that slightly pedantic point is that we assess SSSIs in one or two ways. We either go out deliberately to go and look at—
Barry Gardiner: I should have said you have ceased to monitor them at least every six years. That would have been a more accurate statement.
Marian Spain: Thank you; that is more accurate. We have monitored them when we have been able. I accept that point.
The reason I feel more confident now about that target is threefold. The first is that we have more resources. We really do have more resources so we have more staff on the ground. We also have more means of monitoring. For reasons that I was deeply concerned to hear about when I came into post, there was a time in Natural England’s long history of SSSIs when we believed that only we could do that condition assessment. It relied on a Natural England member of staff visiting. What we have put in place over the last few years is other ways—we can gather the data in different ways. We will still make the judgment on the condition but we will draw data on a range of sources not just our own staff visiting. Therefore, we are far more likely to work with ENGOs, to use their volunteers or to invite them to monitor their own sites. Increasingly we are working with landowners, not necessarily monitoring at the levels we would that provide insight and information.
I suppose that also is the point that you are making. We are more likely to visit if we have reason to believe that there is something to be concerned about. The other reason why I am more confident that we can monitor more is because we now are also more likely to be able to take action.
Q37 Barry Gardiner: Sorry, I want to pursue the business of enforcement. The NAO told us that for Natural England, the enforcement action for SSSIs has fallen from 151 offences in 2013-14 to 39 offences in 2021. It could be that the offending rate has declined or it could be that the reduction in monitoring has meant that you are not picking up those offences and you are then not enforcing against them. What is just as worrying is that you have stopped publishing annual information on your enforcement activity so we now have no way of holding you to account for it.
Marian Spain: We have. Three or four years ago we chose not to publish our annual monitoring.
Barry Gardiner: In 2017-18, yes.
Marian Spain: We are now putting that right. We will be publishing a monitoring report quite shortly, in the next few weeks. We are putting that right and giving a monitoring report that goes back to the date that you mentioned. I absolutely acknowledge that that has not held a record. There is a record, there is information on the website but it is not accessible and it does not paint the picture. We absolutely recognise that we need to be more transparent about our enforcement.
I do not think that there is a direct correlation between whether or not we have been assessing condition and whether or not we have been taking enforcement action because, as I explained a moment ago, a lot of time to improve condition we do not need to enforce and we do not need to take legal action. We need to find ways of changing management. Therefore, I am not sure it is a direct correlation as you have described.
The other reason the numbers are hard to track over time is because we have changed some of the ways we use. We have recently brought in civil sanction, so it is not always easy to compare year with year. However, I do not want to hide the fact that we know that we should have done a better job at presenting the data and we have put in place steps to do that. We now have a better central database to hold the data as well.
Q38 Dr Offord: I will be very quick because we are expecting a vote. In response to a previous question, the issue of financial resources was addressed, but what I will ask you, Sir James, is the number of recommended prosecutions that have occurred in the last reported period. I am aware that you may not have that off the top of your head or in the notes in front of you. If you do not, would you be able to write to us with that information?
The question I want to ask from that is: on those occasions where initial prosecution has been recommended, how many times has it been downgraded and what mechanism is in place to downgrade it to an enforcement undertaking?
Sir James Bevan: Thank you, Dr Offord. We can write to you with the latest data; we have that data. We are continuing to do a substantial number of prosecutions and we usually win, including against water companies, and we are pleased with the increased size of the fines. We are also pleased that in some of the prosecutions that we have done in my time as chief executive—no credit to me—we have secured custodial sentences, including a seven and a half year custodial sentence for waste crime, which is important in sending a deterrent signal.
I said earlier that we have a range of enforcement sanctions and we try to use all of them as appropriate. We think quite carefully about which is right. Essentially the decision is how severe is the impact and how deliberate or otherwise is the intent. We will normally prosecute if there is serious harm, particularly if there is evidence of intent. We have to make those judgments carefully. We will only prosecute if there is sufficient evidence. It takes time to build that evidence base. We have to be sure that there is a prospect of securing a conviction and we have to be sure that it is in the public interest.
One of the alternatives, as I have said, is enforcement undertakings. As I was explaining earlier, we would not be prepared to accept an enforcement undertaking in exchange for a decision not to prosecute where there was serious harm and/or evidence of culpability or intent. Enforcement undertakings work when a company or an organisation has made a mistake in good faith, has owned up, has not done severe damage and is offering a quick route to remediate that damage, in the form of cash. For example, we accepted an enforcement undertaking from Thames Water recently. As well as correcting the problems that led to a degree of pollution of a watercourse, it is paying out £100,000 to three different NGOs to remediate that watercourse and to improve nature around it.
Q39 Dr Offord: One part of the enforcement understanding is it is for the third parties to ensure that it does not happen again.
Sir James Bevan: Yes. First, we do not have to accept an enforcement undertaking. We will take a decision whether or not to prosecute. Secondly, the track record of a company will have a significant bearing on a decision as to whether or not to prosecute. As you rightly say, Mr Offord, part of the condition of an enforcement undertaking is that the company undertakes not just to pay to remediate the damage but to take measures, which we check, to ensure as far as possible that that will not occur again.
Q40 Dr Offord: Have you undertaken any prosecutions where the EU has failed to be adhered to?
Sir James Bevan: We have certainly prosecuted companies, including Thames Water, after we have accepted EUs, but not directly for the EU that we have accepted. The EU is for a specific offence.
Q41 Dr Offord: You have previously said—probably the last time that you appeared in front of the Committee in June 2021—that the choice of using enforcement undertaking as an alternative to prosecution is not a response to less money. However, as we have previously heard, you have had fewer enforcement actions and prosecutions. You have also said that, “When we prosecute we almost always win”. In those cases I realise that the money goes to the Treasury and you receive no financial benefit through securing a conviction, but you are able to recover costs of that prosecution. I presume that money would then be able to be recirculated, recycled shall we say, back into the system so that you can fund further other prosecutions.
Sir James Bevan: Yes, absolutely right. We will always press for and we almost always secure our costs. That helps fund further enforcement and prosecution activities. We will also often, in the case particularly of serious waste criminals as a good example, subsequently press for a proceeds of crime order where we can have access to the confiscated assets of that criminal. An proportion of that money—not all of it but a proportion of that money—comes back to us, which we can use for further activity on waste crime.
Finally, as you will have seen, the Government have taken a very welcome step recently, which is to decide that in future fines against water companies, which are substantial—£140 million or more in the last few years—instead of going to the Treasury into the general nation’s coffers will go back to DEFRA for use in taking action to ensure that those things happen less frequently and that damage is remediated.
Q42 Dr Offord: I am aware of that but I see a clear distinction between environmental crimes such as fly-tipping. In the London Borough of Barnett when I was responsible for it, that was a criminal activity. It was a huge organised crime. The water companies act in a way that they are still able to pollute our watercourses and rivers but say, “We have to because sewage would back up so we have to do that.” I see them as two different crimes.
How much of an effective deterrent do you think the enforcement undertakings are in people not committing the crime in the beginning or are people not aware of that mechanism and are either caught out or an accident happens and that is a mechanism that you can come to as an alternative to prosecution? As you said, it could be something that happened accidently rather than deliberatively. What kind of leniency and discretion would your officers have to decide whether you could go down the route of EU rather than prosecution?
Sir James Bevan: On your first observation, you are quite right. Obviously there is a massive difference between a serious organised criminal with his fingers in a whole bunch of other pies versus a water company. That said, environment crime is environment crime and we need to recognise it and go after it wherever it happens and we do, including against water companies.
We have a particular process, which I am not involved in, for deciding whether to prosecute. It is right that I should not be part of that. We have clear rules about how we decide, and those are public. We have a similar process for deciding whether we will accept an EU, an enforcement undertaking, in lieu of prosecution, which is also robust. Does it deter? I certainly think that prosecution and substantial sentences deter, and we are on record as saying that we would like to see more substantial sentences against water companies as well as others.
Maybe there is a minor deterrent impact of EUs in the fact that we publish. We publish online all of the enforcement undertakings that we take and we publicise our prosecution successes and our EUs, partly to shame the companies into recognising that they should not be doing this. They do not like that, and that tells me that that is worth doing and it has something of a deterrent impact. However the biggest of all deterrents, whether it is waste criminals or water companies or whoever, is a genuinely robust regulatory framework robustly enforced and that is what we try to achieve.
Q43 Dr Offord: When you write to the Committee or have someone do that, can I ask for not only the number of prosecutions but also the number of EUs that have been agreed as well? That would be helpful, thank you very much.
Marian Spain: Very quickly, a lot of the principles James just described apply equally to wildlife and nature crime. One point I meant to add, and this will hopefully give you some comfort, is that we have increased the size of our enforcement team and we now have a lot more in-house legal capacity so that we have more capacity to prosecute where we need to.
Chair: We are expecting votes shortly, but before we conclude this panel Christopher Chope has a short question.
Q44 Sir Christopher Chope: Can I ask Marian about her organisation’s interaction with the planning system? Are you embarrassed, for example, that the issue over nutrient neutrality is preventing probably 100,000 new homes being built? Why does your organisation not respond in timely fashion, as a statutory consultee, to all those planning applications? I have a constituency case where because of your inability to be able to respond in a timely fashion, the blight of planning applications is hanging over people for years and years and this is having an adverse effect.
Marian Spain: I am aware of a case in your constituency. If it is the one that I think it is, it has not been Natural England there, but I am happy to take that up with you separately. Perhaps we can correspond about that offline. If it is the case that I am thinking of, it is not Natural England. I will not dwell on it now.
I would be more embarrassed if we and the Environment Agency were not taking action on water quality. That is why we have chosen to do what we understand has been difficult, for a lot of people—up to the point of nutrient neutrality, I will step back to make sure that I have not lost the thread of my narrative for everybody.
We absolutely recognise that the advice that we have given a number of local authorities has caused a major impact on the workload for those local authorities, the livelihoods of builders and the need for housing. However, we were reaching a situation where we were seeing water quality was so bad that some of our most important nature sites were being directly damaged by poor water quality. It was our duty as the statutory adviser to raise that issue. We did not do it lightly. We did it in close consultation with our colleagues in government, across government, and we are doing everything we can to resolve the problem by offering a range of solutions that local authorities and developers can use.
We are leading the nutrient mitigation scheme, which we are directly delivering with government funding. That is on track to start credits that will allow new planning permissions to be given by March this year. That was the timetable that we committed to and that is the timetable that we will meet. What we are also doing with our colleagues in the Environment Agency is that the fact that this particular concern has triggered a very different—perhaps not a different approach but it has been extremely helpful in allowing us to work more closely together at a catchment level to look at what can be done by water companies through Ofwat regulation, what can be done through the Environment Act regulation, what we can do through the advice we give farmers on catchment-sensitive farming so that we are starting to trigger a more holistic approach to water quality in a catchment.
I repeat again that we did not take that judgment lightly. We understood how disruptive it would be and we have worked hard to try to bring the solutions in very quickly.
Q45 Sir Christopher Chope: But you are making the potential developers of new housing the scapegoats when a lot of the problems that you have been describing are because of intensification of existing activity, including more people in the population, and I could go on. Is it not unfair to undermine the Government’s campaign for the number of new houses by picking on that particular sector because it is an easy hit?
Marian Spain: I do not think that we are picking on a sector. We are pointing out that a combination of pollutant loads has started to put our nature sites in jeopardy. What we have done is offered a solution that provides a quick solution for developers. We are not saying to developers that they cannot build new houses, we are not advising planning authorities not to allow new houses. We are saying that we have to take a range of measures to reduce the overall nutrient load. One part of the picture that I just painted, the scheme that Natural England is running, is the solution is to work with landowners, including environmental charities, to ask what we can do to change land management and create a nutrient sink so that it is not affecting housing development. However, the local authority has to be confident that those nutrient sinks are in place before it allows new housing development.
Q46 Sir Christopher Chope: When will these 100,000 houses, which are not being built because of this problem, be able to be built?
Marian Spain: A number of them are already being built. If you look in Hampshire in the Solent, if you look at Somerset, the schemes have been running now for the past two or three years and we are confident that it will start to work. As I said, by March, in the Teesside for example, we will start to issue credits that allow planning permissions to be given.
Q47 Chair: We have to bring this to an end because a Division has been called. However, on nutrient neutrality, does your 31 March deadline relate specific to Dorset or is it a national position?
Marian Spain: No, it is a national undertaking.
Q48 Chair: For example, there is a rural catchment in my constituency in Shropshire and there has been no development allowed for eight years as a result of this issue and there has been, therefore, no affordable housing and people have to leave the area because there is nowhere for them to live. The local authority tells me that it is because Natural England has not confirmed the framework with which consents and mitigation can be brought to bear.
Marian Spain: I do not recognise the eight years because we only gave this advice to local authorities—
Chair: Last summer, indeed, but the problem, the prohibition on development, has happened for eight years.
Marian Spain: May I come back to you on that? I do not recognise the eight years.
Chair: Yes, please do. I am going to conclude the panel by thanking Marian Spain from Natural England and James Bevan from the Environment Agency. In particular, James, thank you for your work while you have been chief executive for the last seven years. Thank you, both of you, for coming to see us today. We are going to suspend this session. I would like to revert with the second panel when we have finished our voting, which is likely to be at 4.15 pm, but I will consult with the chairman and the chief executive of the OEP to see if they are able to stay that long.