Liz Hart.

Q132 The Chair: Welcome to this meeting of the Built Environment Committee. This is one of our evidence sessions in our inquiry into the impact of environmental regulations on development. Our witness in this session is Liz Hart, director of Hart Environmental Ltd. Please could members and witnesses keep questions and answers brief?

I will ask the first question. To what extent does the current system of environmental assessment enable ecologists to work productively with developers to solve issues?

Liz Hart: Ecology has always been part of land quality assessments. We have had to consider it as what we call a receptor, something that we need to protect when we are looking at land contamination. It will also influence when land remediation can take place under development to make sure that we are protecting species. A new introduction was the biodiversity net gain, and this has had the biggest impact. It is not seating terribly well with brownfield regeneration in development. I do not think I explained this terribly clearly in my written statement, so I will very quickly skip over that.

When we are looking at biodiversity net gain, an assessment is done on a piece of land before any development starts and it is given a score. Greenfield sites like agricultural land tend to score quite low, because they do not have high biodiversity value, whereas brownfield sites tend to have—not all the time, but a lot of the time—a very high biodiversity value. This could be because there is lots of opportunity for different habitats. It could be because contamination in the soil is attracting species that you would not see elsewhere. These sites need to be remediated, because what is not seen is that they can be leaching contamination into the groundwater. They can be impacting surface water. We have to come up with a remediation scheme, which invariably will mean that the site vegetation needs to be stripped back, buildings and hardstanding needs to be grubbed up, and soils need to be excavated. In remediating the site and limiting pollution, we are actually taking the biodiversity backwards. We are not able to retain much of it.

At the end of that, with the current system we need to add a 10% gain. I and a lot of my colleagues are seeing that this is putting developers off brownfield sites. The brownfield sites tend to be in lower economic areas. They are often in areas where we need affordable housing. When we start looking at all this and biodiversity, which is important, is added to it, the effect of having to remediate at those sites is not coming into that. We are seeing them being left and not taken forward.

At the moment, on the biodiversity/ecology and land regeneration side of things, under planning there is no clear communication, and no clear understanding of how those two things can sit together and how we can see an overall gain in environmental improvement, not just in the diversity scoring scheme.

The Chair: We have had written evidence, which I think might be expanded on in a future session, that the cost of biodiversity net gain—I do not know how precise figures are produced—is less than 1% of the value of the development; 0.6% is the figure we have seen. That would suggest that, even on a brownfield site where you had this challenge, it was financially manageable, but you are suggesting it is off-putting. Is that because the figure is wrong or because decisions are financially so marginal that 0.6% is a serious number and does make an impact?

Liz Hart: It would very much depend on the site, and it would be very difficult to say that it was just one piece of value. If you have a brownfield site where you can work with some existing features and do not have to do extensive remediation, it might not be that expensive to incorporate biodiversity there. The sites I tend to work with have high contaminant loading in groundwater and are having an impact on the surface water. The cost of remediating those is significantly higher. It is not just the cost of introducing biodiversity; it is adding that to the cost of taking forward that whole site with all the complexities in it.

Q133 Baroness Eaton: Good morning. Given your previous employment with the Environment Agency, how would you describe collaboration between the Environment Agency, developers and landowners?

Liz Hart: One thing that I think is not understood by a lot of industry and a lot of individuals is that the Environment Agency has a really important role and does a lot of excellent work, but under planning it is not a statutory consultee for land quality and groundwater, so any involvement it has is over and above all the other things that it delivers. It does it because there is a lot of benefit in having early engagement with planning, particularly on groundwater. If it is missed or it is not conceptualised properly and you end up with a development going forward that is impacting groundwater, trying to improve that retrospectively is incredibly difficult, if not impossible. Early engagement with somebody who understands that and can conceptualise it is really important, which is why the Environment Agency puts resource into looking at planning, even though it is not a statutory consultee.

Having said that, because it is not a statutory consultee the engagement is poor. You do not get access. When I worked for the Environment Agency, you would be involved in discussions with the developer and the consultant around the table and in conversations with the local planning authority. That does not happen now. If you want that level of engagement with the Environment Agency, you have to pay for it; it is a paid-for service. Lots of developers do not opt to do that, because they think, “We’re already going through the planning system and this is a material consideration under planning, so why would we need to fund that additionally when we are already going through this scheme?”

There is another interaction between planning and the Environment Agency: looking at waste. I touched on this in my written submission. This is not working at all. It is causing complete chaos. We are back to dual regulation in the planning scheme. Having been around long enough to have seen the previous report on dual regulation, it is quite discouraging to see that it is happening again. There is no autonomy there. There is no ability to speak to the area office that is permitted to make the decision and to say, “We’re already regulating this. We already have appropriate precautions in place under planning. We don’t need in this instance to permit it as well. That’s doing exactly the same thing”. There are a lot of challenges going on with the Environment Agency and liaison with developers and the local planning authority. At the moment, my experience is that it is not working well.

Baroness Eaton: I was going to ask you about the dual process of planning and the permitting licence, but you have covered that for me. Thank you.

Q134 Lord Best: Is there a way of solving a lot of these problems by having what is usually the county council—we have heard about Hampshire—doing a full open-source environmental information package? We heard it compared to the human genome project. Every bit of Hampshire, apparently, has had its assessment in advance and one can avoid all the hassle and difficulties of trying to pick up the pieces later. Is this something that appeals to you?

Liz Hart: It would be difficult to do that in enough detail. Land quality assessments are all very site specific. We have very complex geology and hydrogeology in the country, and you have to look at every plot for the geology and the hydrogeology and how that interacts with surface water. There is certainly information that could be made available. We are getting some way to doing that by improving the public register resources at the Environment Agency and in local government, and MAGIC maps have been employed by Natural England.

I can see how an overarching review of allocated land could be useful, and how it could be useful to get the right people around the table to look at what some of the key issues might be, but that does not remove the fact that the Environment Agency, for example, is not resourced to do that. You would still need somebody with that expertise sitting around the table, even at an early stage.

I can see some benefits in doing general scoping of sites. A lot of that has been done and it happens now. When they are looking at land allocation they will do a generic conceptualisation of what some of the key issues might be so that they engage properly, but it would never replace doing the detailed assessment that we do at the pre-planning permission stage.

Lord Best: Is it not working in Hampshire? We were led to believe that it was making quite a difference.

Liz Hart: I do not have that example in Hampshire, because I have not worked there specifically. I would be very surprised if they are doing all the detail. Until you know exactly what that development will be, even for human health you would have to do soil testing. We would need to look at the soil loading and what the actual development will be in order to propose sensible remediation. Until you know more of the detail, you cannot do a high-level risk assessment.

Lord Best: Pity.

Q135 Baroness Thornhill: Forgive me, but I am seeking a little clarification here, because we are also very interested in solutions and being a bit more solutions focused.

I am interested in what you were saying about the duality of planning, permitting and all that, and brownfield versus greenfield. If brownfield is at the top of the planning hierarchy, rules tighten so that we no longer build on green belt, or it will become more difficult. That is one problem. Then there is the duality problem. What key solutions do you see? What do you think could and should be done to try to work through this? To be blunt, what you have described is a right mess, quite frankly. Add skill shortages to that and it is looking quite complex.

Liz Hart: It is. There are two key questions there that I will answer separately, because they are different.

First, there is a need to recognise initially that there is dual regulation. We can call something waste or whatever we like, but what are we trying to achieve on the site at the end of the day? If it is environmental protection, betterment, improved health and a safe development, that can be achieved under planning. There are exceptions, and I accept that some legislative decisions have been made in the past that mean that if something has an active permit on it there will have to be some dual regulation there. There are some exceptions, but on the whole there needs to be the autonomy to be able to say, “Yes, this is what we are trying to achieve. We can do that through planning”. That should be relatively straightforward, but that decision has to be made and communicated.

Baroness Thornhill: Who should make it?

Liz Hart: At the minute, it is probably the Environment Agency national team that needs to recognise and value the land quality approach rather than thinking that the only way there can be control and management of systems is through waste regulation.

The second issue is resourcing. Adequate resources and retaining experienced technical staff in area offices of the Environment Agency, in local government, across the board, is difficult. We are seeing a huge brain drain. They do not have the resources and I cannot see that changing. Planning is an additional thing that is not a statutory role, and there are other options. A site has to be reviewed by somebody who is competent to make sure that you have a quality check, that it is suitably conceptualised, and that things have not been missed.

One of the things that industry developed alongside the Environment Agency and local government groups was the national quality mark scheme. It was not designed to be a peer review for planning, but it can be evolved into that. Individuals like me who are registered and suitably qualified people have to go through an exam process with peers to show that we have the relevant experience to work at that level. Local planning authorities could look to suitably qualified people and the national quality mark scheme to help give them support in areas that they do not have internally.

Most local planning authorities will have a contaminated land officer who is experienced in human health. That is what they do, but they are not hydrogeologists or hydrologists. Looking at groundwater and surface water is beyond their skill set, but there are consultants who can support who are registered under the scheme. As long as they had enough distance from the project—they could not be involved with it; they would have to be completely independent—they could work with the local planning authority and provide an independent peer review of schemes.

The resource is there in industry to do that. We just need first to improve the trust and understand collaborative working. Trust is a big problem in our industry. As a regulator turned consultant, I am often referred to as gamekeeper turned poacher, which is not true. I am the same person, I have the same morals and I am tied to the same professional code of conduct as I was when I was a regulator. In order to get over that hurdle, we need to understand that most of us are striving for the same thing. Do not get me wrong: there are poor consultants just as much as there are inexperienced regulators, but they will not be registered as suitably qualified persons. We are more likely to openly call those out if we see poor work in the industry, because it pulls the standard for us all down.

Lord Best: You are saying to the Environment Agency, “Back off”.

Liz Hart: I am saying to the Environment Agency that it needs to recognise what it is trying to achieve. Under planning, where material is generated on the site and under a land quality risk assessment, we can show that it is chemically and physically suitable for being retained and reused on that site. That is a good thing. That is a win and is sustainable. On throwing permitting into that mix when we do not need to, yes, back off on that.

Q136 The Chair: I will ask another version of Lady Thornhill’s question. If we do not have the right skills and resources to do all the things we want to do in a timely manner so that development can proceed at a sensible pace, and if, as you said, it seems unlikely that that situation will change, one logical conclusion might be that we should be trying to do less. If you accept that as a premise, what is your top thing for throwing overboard? You mentioned permitting and planning for waste, but you are not changing the substance there. You are simply saying that you will achieve the same outcome but you do not need the dual process to achieve it. I am talking a little bit deeper. Do we really need to make a fuss about some of these things? Are they all equally important? Which would go? For which would you say, “We’ll focus our resources on these things, but not that?”

Liz Hart: I do not think that anything needs to go. I think we can deliver excellence. We can strive for continuous improvement, which is what we should be doing. We should not be looking at a development system and saying, “We can’t do it, so what should we drop off?” All of it is important, but it all needs to interact together. That is what we do not have a good grasp of at the minute.

The Chair: We are told that one reason why it does not interact well is the lack of skills and resources. We are told that you cannot get meetings in the Environment Agency or that you are talking to a different person. You have to wait a very long time for some engagement at this body as opposed to that body. Getting the different local authorities in the room in two-tier areas with their different responsibilities is difficult; they do not have the people, and people leave to do other jobs and so forth. Some of these things are inevitable and always happen, but they do seem to be almost systemically embedded in this area of work now. It is not just that we are going through a bad patch, it seems to me.

Liz Hart: Yes. We need to be a little careful in thinking about what we can drop. It is more about who is doing what and how we deliver that. Again, there are two problems here. The first is a resource issue. We are seeing a brain drain out of area Environment Agency teams. There is no incentive to keep those individuals there, who are excellent individuals who add a lot of value. That needs to be thought about, because, other than planning, the Environment Agency does a lot. We would be in a very poor place if it were not doing that. Groundwater is a great example. The Environment Agency protects it as a resource. It is our drinking water supply and feeds our surface waters. Nobody knows that it does that.

We need to look at that resourcing. Although it is a bit of a challenge, outside of planning there are reasons why it needs proper resourcing. In planning, there are other options that we can look at, which shifts the resource elsewhere. That is where the national quality mark scheme and the SQP reviews come in. It does not reduce the obligation or what we are trying to deliver; it just gets other parties that have more capacity involved in delivering that.

The biodiversity net gain is an example of the opposite side of this. It came out in a silo, and we have a bad habit of having excellent initiatives—“Improving biodiversity is a brilliant idea. I’m all for it”—but if you bring out guidance that does not sit down with all the other groups that work on that site and deliver other objectives that are equally important, and think about how all that will interact, it increases the amount of resource needed to deliver it, because it is not coherent. It does not get us all pulling in the same direction.

That leads us to the question you asked: which one do we give priority to? I think we can give priority to everything, but we have to think about how we are delivering it as a coherent site rather than each area trying to grab its priority. I do not know if I was terribly clear there.

The Chair: You were very clear. That is very helpful. Thank you.

Q137 Baroness Warwick of Undercliffe: Good morning. I was going to ask you whether there was sufficient expertise right across the system. It seemed to me that you were saying there probably was, but it is not in the right place. You seem to be suggesting that consultants might fill what are clear gaps in skills, particularly at local authority level, in assessing the environmental information that is presented to them. Could you explore that a bit more? If part of the reason why local authorities no longer have that expertise is lack of resources because they simply cannot afford to keep those people, will there be any additional incentive for them to take on extra expertise through consultants? What is the mechanism here that would persuade local authorities?

Liz Hart: Local authorities have always struggled with having the expertise that the Environment Agency offers in groundwater, surface water and, in some respects, waste. They have never had that background. The Environment Agency has always provided that for them, but it is struggling with those technical resources, so it is reducing what it can offer.

On the point about local planning authorities, I envisage the national quality mark scheme and the SQP scheme working by the National Planning Policy Framework putting the onus on a developer to ensure that a site is safe and having to employ competent consultants to advise them. The local planning authority could then say to the developer, “We’ve flagged this as a potentially higher-risk site for land quality issues. We’d like you to get your entire project reviewed by an independent, suitably qualified person under the national quality mark scheme”. The developer would fund that.

It is not necessarily a big expense, but the person would have to show independence, that they were completely removed from it. It is not dissimilar to something that we already do for the reuse of soils under a code of practice whereby you have a qualified person who is completely removed from the scheme who will check that the ground investigation was done properly, the risk assessment suits how they have conceptualised the site, they have not missed anything, everything that guidance suggests needs to be looked at has been done properly, and it is a robust assessment.

This approach is already there and developers already fund that. They are familiar with doing that, so it would be no big jump for local planning authorities to request it. I would not say that it would be needed for every planning site either. These are the sites that need that extra bit of care and attention given to them.

Baroness Warwick of Undercliffe: I am finding it quite difficult to know the depth of work that would be needed. How would we judge how much new responsibility would fall on the developer and the likely reaction to that?

Liz Hart: I do not think it is adding any new responsibilities to them, because they are already responsible for delivering a safe development. However, it is adding an additional level of auditing and peer review and, to be honest, I am not sure that they would necessarily like that. That audit is already happening on some of those sites, but it is just being done by the Environment Agency and planning. As long as they know that they will get it within a set timeframe, I think that would be a big incentive for them. I suspect they would appreciate that, because one of their biggest challenges is developments being held up and not getting going. That is just how their development plan works. They need those sites turned over.

Baroness Warwick of Undercliffe: In your judgment, is there sufficient expertise available in the system were it to be properly used.

Liz Hart: There is probably insufficient expertise, but there could be a clear drive to promote consultants who have not yet gone through the process of becoming a SiLC and an SQP to take that initiative. It is an initiative that has been driven for a long time—for many reasons, including to demonstrate that level of confidence to regulators. I think having it more formally integrated would drive ‘uptake’ a lot more, so that resource would automatically be there then.

Q138 Lord Faulkner of Worcester: Good morning, and thank you for joining us this morning. I would like you to describe to us some of the innovative projects that are under way that protect the environment through development. It is a slightly odd question in that we think of development as not protecting the environment, but maybe you can give us some examples of where it does.

Liz Hart: I will say straightaway that any development on a brownfield site, particularly an old industrial site, will be enhancing and protecting the environment, even putting aside questions of biodiversity, because most of them have contamination on them. We have had the brownfield drive initiative for quite a long time. The easy sites have gone. We are getting the complicated sites now. Anything that we can do to promote development on these complicated sites is improving the environmental setting, because it will be generating that remediation. For most of these sites, that is the only way they will be cleaned up. Part 2A, which looks at significant risk, does not really come into play on some of these sites. They are not that bad, but they are bad enough to be causing an effect.

Some of the sites that I have been involved in most recently are landfills. Landfills are a legacy problem and will continue to be a problem for a very long time. Historical ones tended not to be lined. They had all sorts deposited in them and they are leaching contamination into groundwater. Once a landfill starts leaching you cannot stop it. You just have to monitor it and see what happens. The only way to do anything proactive there is to start looking at remediating.

The projects I have been involved with recently are landfills, quite nasty hazardous waste ones where the remediation has involved excavating the entire waste mass, re-engineering, sorting through, and getting off site the material that cannot be cleaned up and is not suitable for reuse. That has gone to landfill, but it has gone into a landfill that is engineered, has a lining and has some management systems on there, which is already an environmental improvement.

The remaining material is treated on site under a mobile plant permit—mobile plant permits have a very useful role; they are not dual regulation—and then placed in a landscape bund. The development then goes for commercial. There is talk of a lot of the complicated landfill sites being suitable for residential. In my experience, unless a site is inert and is not causing contamination, it will probably not be suitable for residential. So they are going for commercial, but they tend to also include landscape or acoustic bunds to protect local residents and to keep that amenity value. The material that has been taken out of the landfill that has been remediated and cleaned on site is then being reused to create the landscape bunds and these amenities.

Another landfill that I am working on geotechnically is not suitable for development. It would be too expensive to ever deliver it to that, but it is having some remediation measures put in place. It is being turned into a country park and public open space, which again is a nice balance for something that cannot be taken for what we conventionally think of as a development, but it has still gone under the planning system and is obviously a good local resource.

Lord Faulkner of Worcester: You said that most of the most promising brownfield sites have now gone.

Liz Hart: Sorry, no, not the promising sites but the easy sites, the sites that might have been brownfield but did not have much contamination on them. They were quite easy turnarounds. There are still some of those, but the sites that we tend to look at now are the old tar distilleries, the chemical factories and the landfills that have quite complicated ground conditions and contamination in them. They are more expensive to develop. They tend to be in lower-value areas with more requirement for affordable housing. We are looping back here to what I said originally. They are the sites that are coming forward now for brownfield. They have a lot of challenges on them.

Lord Faulkner of Worcester: Does anybody keep a register of all these sites? Do you?

Liz Hart: Local authorities were tasked a few years ago with keeping a register of brownfield sites. In that register, they will do an initial conceptualisation of the site, much like what was described in Hampshire although possibly not in that much detail, looking at what some of the key risk drivers might be in taking that site forward for development. I understand that they use those to inform their local plan and to look at what they will allocate each year and what they want to drive forward.

Lord Faulkner of Worcester: Thank you. That is very helpful.

Q139 The Chair: I have one question that has been passed to me. Will the introduction of environmental outcome reports as a result of the Levelling-up and Regeneration Bill help to focus on what we are trying to achieve? On the question you are raising of what we are trying to achieve, do you think that those reports will make a difference?

Liz Hart: I do not have enough background knowledge on those reports to answer that question. Can I check and come back to you on it?

The Chair: Yes, we are very happy to take in supplementary written evidence on any point that you would like to make after the evidence session, so the answer is yes, by all means, but do not feel limited to this question. If you want to add other comments, you are welcome to do that too. We would be interested to know. The Bill is still live, of course—it has not passed into law yet—so there is probably no living example of an environmental outcome report in the wild for you to look at.

Liz Hart: No, but if look at one to better understand what they are trying to achieve, I could give you a view based on land quality and my experiences. The title sounds promising, but I would like to see what is in it.

The Chair: Kate will be able to give you a pointer to the right part of the Bill that establishes the new reports that will be required.

Q140 Baroness Thornhill: You are probably well aware of the issue with many local authorities that have been given the so-called moratorium on housebuilding as a result of water neutrality issues and so on. What is your take on that, and how do you read that situation? We have been hearing from developers, particularly SME developers, who are genuinely feeling that the onus on them to do all this remediation and that ticking tick all the boxes they are required to tick is too much. We have quite interesting situations there. Where do you feel the balance should lie? Is it too much one way or the other? What is your take on authorities that are now told, “You can’t build here”? How difficult is it to do this mitigation work, especially on the smaller sites?

Liz Hart: Again, I do not do drainage design on some of the nutrient neutrality mitigation, so it is not my area of expertise. The issue, from what I am seeing, falls into the same category as the biodiversity net gain approach. The principle, of course, is excellent. We need to think about reducing nutrient loading, not just assume that this can all be managed at the sewage treatment works. That is not a sustainable option.

Sustainable urban drainage has been around for a very long time and some of the options for developers for nutrient neutrality tie into that. One of the challenges that certainly smaller companies will face is that if they are taking brownfield sites forward and then have to reduce density on those sites to set aside areas for reed beds or swales, for example, it starts affecting overall profits. Again, I have not seen the actual values, the costing of the projects, because that is not what I get involved in, but I tend not to see a lot of land set aside. I am not sure there is a huge drive or incentive to go beyond soakaways. That is crossing the subject a bit, because one is sustainable urban drainage and one is not, but, from my limited knowledge of it, these two things tie together quite closely.

This goes back to how it was an excellent initiative but it came out in a silo. Its effects, how it will be applied and how that can be moderated were not included. It immediately created panic and confusion, and whenever you get panic and confusion in the development sector it takes quite a long time to get back to level thinking. If any of these initiatives can come out with a joined-up approach, they are more likely to succeed and be incorporated in a development.

Q141 Lord Berkeley: Good morning. In your response to Baroness Eaton, you mentioned wastewater and the confusion that was being caused there. Could you explain a bit more or possibly submit some further written evidence on it? It would be useful to hear your comments.

Liz Hart: I am sorry, in the context of nutrient neutrality?

Lord Berkeley: You mentioned waste and water, I thought.

Liz Hart: Waste is one issue, as is managing water, definitely. I would be happy to send more comments and thoughts through.

Lord Carrington of Fulham: I wanted to bring you back to heavily polluted brownfield sites to make sure that I understood it properly. I think you are saying that the brownfield sites that need remediation and development now, whatever form that development can take because of the nature of the pollution, will be extraordinarily difficult and very expensive to do and presumably will not, therefore, be able to be done commercially by any developer. Have I understood that right?

If I have understood that right and we have all these brownfield sites, particularly in the old industrial areas, that will be very expensive to bring back into use, how do we fund that? Does that have to be done from central funds, or ought we to be setting up a brownfields redevelopment commission to bring them up to some sort of standard? Can that be done by local authorities or by developers?

Liz Hart: With brownfield sites we are looking at more complicated ones. That is not to say that they cannot be remediated and brought forward for development. It is just that the remediation of them needs to be factored in with everything else that a developer is contributing. We need to be clear about what we want our overall objective to be on that site and that something has to give. This is not about looking at things in silos but, instead, looking at the whole project. Most sites are developable, most sites can be remediated, but they are the sites that are getting more expensive.

There are a few that I have been involved in that will never stack up for development because of the extent of contamination on them. Again, normally when there is high remediation cost you will be looking to put housing on there because there are better returns on housing, so you can balance the costs. You can put housing on a small percentage of sites, but there are some sites that never stack up, and I have seen so many developers walk away from them.

We have to look at the risk that these sites present and the environmental legislation we have to deal with them. Where there is a significant risk of harm, such as significant pollution in groundwater or a significant risk to human health, we have Part 2A of the Environmental Protection Act. Local authorities regulate with that piece of legislation, which allows them to look at who the landowner is, who was responsible originally for causing that contamination, whether they are still around, and work with them to try to clean that up. They have notices that they can serve to require it.

Not many sites have been caught under the Part 2A legislation, but the option is still there. Some of these other sites are just left derelict and it is difficult to catch them under any legislation, which is why it is important to get planning brownfield regeneration and to try as much as we can not to trip it up: because it delivers so much more than just the development.

The Chair: Thank you much for your evidence, which is very valuable. As I said, we are happy to take any supplementary written evidence that you would be able to submit in the next couple of weeks. Thank you very much, Ms Hart. It has been very helpful.

Liz Hart: You are welcome. Thank you.