The Chair: Welcome to this evidence session of the Built Environment Committee’s inquiry into the impact of environmental regulation on development. Our witnesses today are Tony Juniper CBE, chairman of Natural England, and Alan Law, deputy chief executive of Natural England. If there is a Division in the House in the course of the meeting, I will adjourn the session while voting takes place. Please could Members and witnesses keep their questions and answers brief.

It is only right that I should say that the register of interests shows that I am a member of the board of the Ebbsfleet Development Corporation. This may or may not be a factor later on, but it is worth saying so that it can be disposed of at this point.

We have a number of questions which you have been given advanced notice of. The first question will be asked by Baroness Warwick of Undercliffe.

Q152 Baroness Warwick of Undercliffe: One of the issues on which we have been given a fair amount of evidence is the question of whether, when it comes to ensuring good development, Natural England sees itself primarily as a regulatory body or a problem-solving body. We have heard, for example, that while Natural England issues directives, it does not offer solutions to developers on issues such as water neutrality.

I wonder whether, in commenting on that, you could give us some examples where you have suggested good practice or innovative solutions that have actually enabled developers to proceed?

Tony Juniper: It is a great pleasure to be here. I am very pleased to be having this timely discussion around the environmental ambitions of the Government and the country, and how those meet the questions of built development and our need for infrastructure, housing and other purposes.

Natural England is a complicated organisation. Our origins go back to the 1940s, and we have been reinvented several times since then. In 2006 we transformed from English Nature to Natural England, with a recombination of duties and powers, and a merger with the Countryside Agency and other bodies. Today we operate hundreds of powers and duties, with a broad purpose of conserving and enhancing the natural environment in the context of sustainable development. Some of those powers and duties are regulatory—for example, wildlife licensing and the notification of sites of special scientific interest. We have a very strong advisory role, working with government in advising policy-making and the natural environment. We are also a delivery body on things such as agri-environment schemes.

Given the complexity and ambitious scale of the Government’s targets, we are increasingly becoming a facilitator and builder of partnerships; indeed, we couch the mission of Natural England these days in terms of building partnerships for nature’s recovery. One of the ways in which we will do this is through new duties and powers granted to us in the Environment Act 2021, which gives us a role in the development of local nature recovery strategies.

I hope the new spatial planning process that came with the Environment Act, and which is geared up to meeting those targets, will enable us to work at a local level with all sorts of different actors in the landscape—water companies, local authorities, construction companies, infrastructure providers, NGOs and other official bodies—to be able to create the integrated approaches that we need in order to deliver on our environmental goals. Those goals are very stretching, if you look at what came from the Environment Act 2021, and the subsequent environmental improvement plan which the Government are now implementing.

We are being very creative about the ways in which we use our powers, duties and expertise. I should say that that regulation, delivery, advice and partnership is all underpinned by solid science. We have been using that scientific expertise to develop new ways of working which can go with the grain of other interests, including in relation to development. The Thames Basin Heaths are a great example of where we worked with the housing sector and local authorities to be able to protect key interests in the south-west of London, such as bird populations, including nightjars and woodlark, at the same time as considerably expanding the built environment. As the houses went up, so did the bird population—a great example of a win-win when we apply our minds to that kind of thinking.

Another recent example is the development of so-called district level licensing. The great crested newt became quite legendary in the built environment sector as something that could stop housing. We developed our approach to move beyond a situation where a single newt stops development to a much more strategic space, whereby the detection of great crested newts would trigger a process leading to the establishment of new ponds in the landscape, thus considerably increasing the newt population and building its conservation status in a positive way, while enabling built development. That has been a very successful scheme.

There are quite a few things to which we can point to show how we use our different roles to work with different sectors to simultaneously achieve targets which appear quite disparate and almost oppositional to each other—for example, housebuilding and nature recovery. We are finding ways in which we can do those two things together.

Q153 Baroness Warwick of Undercliffe: In adding to that, Mr Law, could you say something about how you assist the smaller developers? The evidence we have heard is that bigger builders find it much easier to engage with you than smaller builders.

Alan Law: There are three things to explain, and I will try to expand on that as I do. The first point was whether we are regulators or advisers. Strictly speaking, we have quite a small regulatory role. We are the decision-maker on issues related to consenting and assenting on sites. For instance, on sites of special scientific interest, if a landowner wants to do something that we deem to be damaging, they will need to get consent; we are the decision maker there. Similarly with species licensing—which is post-planning permitting—relating to great crested newts, bats, et cetera, again we are the licensing body. In most cases we issue advice to another party that then makes the decision; that party may be the local planning authority, a government department, or the Environment Agency. The regulation side is relatively small.

You made a point about nutrient neutrality and said that we did not offer a solution. I would just like to correct that.

Baroness Warwick of Undercliffe: That was the allegation.

Alan Law: We offered a solution before nutrient neutrality was rolled out, which was a proposal that there should be a habitat creation pump-priming scheme which housebuilders could buy into at the point of operation. That scheme has come in subsequently, but we had proposed it something like a year in advance of nutrient neutrality being brought in. I just want to emphasise that. We absolutely see ourselves as a body that needs to propose solutions as well as flag up problems for the environment, where there are problems.

On working with small developers, that is where those kinds of strategic schemes are most appropriate. Tony mentioned Thames Basin Heaths and district level licensing. What we find very often is that large developers, because they have a large land holding and quite a lot of lead-in time, tend to be more likely to come to us for discretionary advice ahead of the planning process. They are able to find their own mitigation, compensation or solutions themselves. That is much more difficult for the smaller housebuilders and developers; the cost of providing a bespoke solution for themselves is usually prohibitive. They either need to be able to buy into a scheme that another developer or the private sector is providing, or they need some kind of, if you like, state-primed solution.

That is where we went to with the Thames Basin Heaths. We pump-primed the creation of offsite green space, so that housebuilders could effectively buy credits from that. The money was then recycled to provide new green space and so the cycle could continue. That scheme has been running now for 20 years, and 45,000 houses have progressed under it.

I should emphasise that it is discretionary; developers can opt to buy into the scheme, or they can provide their own solution. It is entirely their choice. The scheme has delivered 80 new green spaces for residents and communities in that area, and at the same time it has achieved its purpose of avoiding a net incremental damage to the wildlife site.

Similarly with district level licensing, the whole point was to offer the developer an option to buy, off the shelf, an immediate mitigation scheme—immediate compliance with environmental regulations. They do not have to do that; they can go through an orthodox bespoke mitigation scheme if they wish, or they can argue that they do not need mitigation if they have evidence to support that.

The typical licensing time that it took for great crested newt licences was over 100 days. That was not 100 days with us; it included any survey work a developer might have to undertake, et cetera, which we cut to 10 days under the district level licensing scheme. We estimate that has resulted in a saving of over £200 million to the housebuilding sector.

The Chair: You talk about a very large number of partnerships. To be blunt, the evidence we have heard is that, as things stand, developers, and even local planning authorities, have difficulty getting in touch with you; you are inaccessible. This may well be to do with staff resources, and the reach and stretch of your organisation. What do you say to that? You seem to expect these multifarious partnerships that are coming up to require a very large increase in specialist staff. Leaving aside the budgetary consequences, which are for you and the Government to manage—although it would be interesting to know your thinking on that front—there is the question of whether a resource with the necessary skills is actually available. Would you like to comment on those questions?

Alan Law: I have been with Natural England and its predecessor bodies for 30 years, so I have seen ebbs and flows in our resource and how we have worked with different sectors.

It is certainly the case that, during the decade after 2010, Natural England, as with other public bodies, was asked to look for efficiencies and resource savings. The resource that we had to deploy in relation to planning and licensing functions contracted, as it did across the piece in all of our work areas. We brought in plenty of measures to try to streamline and prioritise our work. I do not believe that large developments suffered during that period in relation to access to specialist skills, but we did contract and we did lose experience.

I am pleased to say that, over the last three years, the Government have recognised the importance of investing in some of those services, not just for the needs of nature but in order to deliver a good service to partners and stakeholders. We have recovered the losses that we incurred, and we have grown somewhat beyond them; although, to be fair, the skills we have brought in are not necessarily as expert as some of those we have lost.

I do not recognise the position that developers find it difficult to contact us. I do not wish to sound defensive but I simply do not. We have a service standard with local authorities around development, where we deliver our responses within 30 days; typically, 80-plus% are delivered within 21 days. That is with local authorities rather than with developers, but we also offer a pre-application discretionary advice service, where developers can come to us and get paid-for advice around what our statutory advice is likely to be. They will bring a proposal to us and say, “What is your likely position going to be in the event that we bring forward a proposal like this?”, and we will provide a response. The purpose is to try to reduce conflict in the planning system, and to ensure that the plans that come forward are likely to be approved and will not create difficulties for us or for the environment. That saves time and money for the developer.

We also engage with developers at a strategic level. For 10 years now, we have had what we call a developers industry group. It is predominantly housebuilders who sit on that group, but there are also people from the energy sector, the transport sector and offshore wind, and people from DLUHC, Defra and local authorities also sit on it. The purpose of the group is to identify policy developments in the pipeline that may impact on development, and to try to work through and identify solutions before they land. The group was initially set up by Richard Benyon when he was Environment Minister in a previous iteration.

The Chair: You may have answered this but the claim is that what developers want to do is sit down with you and work out solutions, and they do not really get that from you. You tend to say, “Here is a problem, what is your solution?” That conversation is hard to develop. That is what we hear.

On the question of resources, do you consider that you are now adequately resourced for your tasks, or do you expect to be recruiting additional resources?

Tony Juniper: As Alan said, we have had a considerable increase in government investment, not least linked to the very considerable ambitions of the 25-year environment plan—now the Environmental Improvement Plan—plus various other reviews, including the Glover review. There is also a new global treaty, which is handing to the domestic level some very stretching targets, out to 2030. So there has been a considerable increase—

The Chair: We will come back to this, but is it 30 by 30?

Tony Juniper: It is. There are a further 22 targets in the Kunming-Montreal Global Biodiversity Framework. We should come back to 30 by 30 because it has created a new context for all of this.

Staff capacity has grown but we are now in a position where we have agreed with Defra that we will not grow it anymore. We very much welcome the growth, but it has stopped for now, and we will need to make the best of the people we have.

On the staff side, onboarding a lot of new people creates challenges. We contracted during the years after 2010, so rebuilding is not necessarily something that leads to instantaneous results. It is going very well. However, considering that we have, I would say, uncompetitive salaries compared to some other organisations, we find that in some skill sets, including planning, we struggle to recruit.

The Chair: As do the local planning authorities; you are all dipping in the same pool.

Tony Juniper: We are dipping in the same pool as the developers and everyone else.

Alan Law: Can I add one thing on resourcing?

The Chair: Very quickly; we have quite a lot more to get through.

Alan Law: You will be aware that, under the levelling-up Bill, there is an amendment proposing that we will be able to recover costs around town and country planning advice. One of the challenges for us is that, because we are grant-in-aid funded in our planning functions, essentially we get a three-year settlement—or an annual settlement if we are unlucky—that provides the fixed resource that we have to provide a particular service. If the economy is on the up and the demands on us are greater, we have no means of flexing that. When we move on to a cost-recovery basis, then of course we will be able to flex according to demand.

Tony is right that, in relation to development planning for offshore wind energy, we have at times been at only 70% capacity in those work areas because of the difficulty in finding the right skills on the market. We are not alone in that.

Q154 The Chair: I am moving on to something else. I am open to supplementaries from other people but while I have them I will carry on.

I would just say very briefly on small builders that this committee is very seized of the fact that, around 10 years ago or maybe a little more, 40% of new homes were built by small and medium-sized builders. That figure is now down to 10%. It appears that some of the measures you have been taking are—from our discussions with small builders—likely to shrink that number further. That probably means fewer homes being built.

While you are focused very properly on your statutory and other remit on the environment and conservation, part of the thread running through this session is how much account you take of that wider social context, and the consequences of your actions. Is it simply a case of, “It is not for us; it is for others to sort out”?

Tony Juniper: Our purpose—the conservation and enhancement of the natural environment in the context of sustainable development—is very much on our mind, to the extent that we need to work with different economic sectors, different interests and different cultural dimensions in order to be able to do the work effectively. That is there. However, as you are pointing out, Chair, our statutory duties are very much linked to Government priorities and policies in the environmental space.

At the end of the day, pretty much everything we are operating is a government policy rather than the choice of Natural England, including some of the things we will talk about today. We have legal obligations or policy ambitions, and the Government are setting the direction of travel. As the delivery body, we are assisting with that and working with others, wherever we can, to help it go as smoothly as possible and in the least disruptive way.

Alan Law: Our purpose is nature recovery. We will not deliver nature recovery without bringing partners with us, whether they are landowners or developers or others. We work proactively with all sectors that have a role to play.

Our ability to provide one-to-one advice for small developers is very limited. We are not an organisation of scale, and we deal with over 25,000 planning applications every year. We simply cannot provide a one-to-one bespoke service for each one of them. However, we try to anticipate the strategic pressures and, more with the large building sector, try to provide solutions that the smaller developers can benefit from.

Q155 The Chair: As there are no other supplementary questions, we will move on.

I turn now to the Dutch-N case and nutrient neutrality. We have had to dig into this, because what everyone says is that Natural England has banned development in over 70 local planning authorities. When you dig further, you find that it was Natural England advice, but that the decision on what weight to give that advice lies with the local planning authorities. Their hand has been forced by a written statement from the Secretary of State, which has material planning weight, expecting that the advice be given serious weight. It comes round in a circle. Natural England’s response to the Dutch-N case has therefore resulted—wherever you lay the responsibility—in a complete cessation of development and a refusal to consider planning applications in over 70 local planning authorities.

The Dutch-N case related almost entirely to the consequences of intensive farming in the Netherlands for nutrient neutrality and waterways. Yet the burden of the Natural England response to it has fallen entirely upon developers and promoters of other infrastructure—not just homebuilders but other developers as well, such as commercial developers.

Did you take account of that in giving your advice? What did you think the social consequences of it might be?

Alan Law: Our job is to advise on matters affecting nature, taking the law and evidence into account. In relation to the Dutch nitrogen case, we had a convergence of new legal understanding around what courts should determine in relation to decisions on plans or projects that could damage an already damaged European site, as well as evidence around the condition of some of those sites.

Early on, we explored with Defra and DLUHC our legal interpretation of where that left decision-makers. Our legal opinion was that decision-makers who were granting planning permission were at risk of legal challenge. Defra and DLUHC took their own legal advice, and that was the conclusion they came to as well.

Over a period of months, Natural England shaped the advice which we were to give to local authorities and developed, with Defra and DLUHC, a package of tools so that local authorities could determine where within their jurisdiction nutrient increases would be damaging, establish the scale of that damage, and evaluate what measures, and what level of measures, would be required to address that.

We had lengthy discussions during this period around the extent to which we should be providing an upfront mitigation scheme. Our advice was that we should. We felt that the minute our advice was issued, local authorities—while they had the discretion to grant planning permission, as you have said—would feel that that discretion was fettered and feel obliged to refuse planning permissions.

The view from the Government at the time was that the market would provide for those solutions, so pump-priming was not done upfront.

Secondly, the legal view from working with Defra and DLUHC was that we should not proactively signal that this advice was coming. The moment you go out to a local authority and say, “This advice is coming”, you are at legal risk. Their view was that the local authorities would stop granting planning permissions at that point, ahead of our advice, and before we had reached the point of actually being able to quantify where it applied and the scale at which it applied. With the agreement of the relevant Ministers, we went out with the full package last March.

The Chair: Even though, in many cases, the objectionable level of nutrients in the catchment areas affected arose from agriculture or forms of agriculture.

Alan Law: You are right.

The Chair: In that regard, do you have the power to dictate to farmers and factory farmers and whatever how they operate, so that you can oblige them to share the burden?

Lord Best: To add context, we have been told that 96% of the problem relates to agriculture and 4% to housebuilding construction, making housing a relatively insignificant part of the total.

Tony Juniper: That is new housing you are talking about. For existing housing, it is about half and half, depending on the catchments. It varies from place to place, and it varies between phosphates and nitrogen. On that point, Alan, this is more for the Environment Agency, is it not?

Alan Law: There are two things. First, we do not have powers to regulate for past pollution. We cannot regulate the existing housing stock and say, “You need to stop polluting”. We have very limited powers around regulating agriculture. Agricultural pollution is largely regulated by the Environment Agency, and I would say there is a less onerous regulatory regime in place currently in relation to agricultural source pollution.

You are right that the proportion of pollution arising from new housing stock is very small. However, to be clear, the question being asked of us is whether it is okay to take an already polluted system and make it worse, not whether new development is more damaging than historic development or agricultural pollution. The legal framework is quite clear that it is not okay. That is the basis of our advice.

The Chair: That is the interpretation of the Dutch-N case.

Alan Law: That is the interpretation of the Dutch-N case, but I put it to you that we know, intuitively, that we have very damaged water courses. Does it make sense to make them worse?

The Chair: That is a context question, is it not? The Home Builders Federation claims that 77,000 homes are being lost as a result of your interpretation and implementation of the Dutch nutrient case.

I come to written evidence we have had from Homes England. It has a number of funding streams, one of them is its housing infrastructure fund, where it does not build houses but prepares land with the infrastructure for others to build houses. Its estimate is that over 26,500 new homes that could be unlocked fall into the areas where this ban has been implemented. That is not to say that the houses will not be built; it is clear about that. However, that is the quantum at risk, just from Homes England, on the infrastructure side.

Its other funding streams are less relevant because, at the moment, it funds only housing that has planning permission. However, they will become more relevant as the houses that have planning permission are built and new ones come forward; those funding streams would, I assume, then be affected as well, because it will be harder to find homes that have planning permission.

The intuitive answer to the question, taken in isolation, has to be the answer you have given—and maybe taking it in isolation is what you do—but this sits in a context, and that is what we are trying to explore.

Lord Berkeley: You talked about the farming side of pollution and the need for regulation by the Environment Agency. Have you had discussions with the Environment Agency? A farmer can presumably tip many more tonnes of this stuff on the land without permission and without anybody raising an objection. Would it not have been sensible to have talked to the Environment Agency and come up with a solution that was a bit fairer between the different people causing the pollution?

Alan Law: We have talked to the Environment Agency about its plans. It is working on diffuse water pollution plans in these catchments and others, which look to address the root causes of some of these problems.

Again, I emphasise that the approach on nutrient neutrality is, by necessity, a temporary one; it is designed to prevent things getting worse. It is not a long-term solution. We have never suggested that it should be. The long-term solution is a combination of better agricultural standards and better sewage treatment works. We do not want to see nutrient neutrality being a scheme that operates in perpetuity. It is a short-term fix to prevent things getting worse.

The Chair: The building of sewage works can take 30 or 40 years.

Tony Juniper: Indeed.

The Chair: Is it not possible that there is an approach to this that says, “Yes, things are bad and they need to get better”?

We had a Dutch witness who put it rather well in a different context, talking about the environmental improvements of Rotterdam docks. He said, “We will improve the Rotterdam docks but it will take 10 years. It cannot be done more quickly, partly because of affordability and partly because of practicality”. You have to say, “We know where we are going and we will get there over time”. Whereas what we seem to have here is a sudden screeching of the brakes on development while one works out what the 20-year solution is.

Tony Juniper: The Dutch-N case has triggered a discussion which has revealed how, over quite a few decades, we have not been paying attention to the level of action needed to protect and enhance our environment.

The level of investment in sewage works over the past 30 years has evidently not been sufficient. We have been pursuing intensive agriculture without paying close attention to the environmental consequences. This legal action has triggered a discussion of the kind that we are having today.

It will not be solved immediately. Indeed, last week I was at a meeting looking at the implementation of the action plan on chalk streams, which touched on some of these subjects. Chalk streams are, in some ways, the most precious aquatic ecosystems in this country. They are unique in the world, and are being affected by these kinds of pollution. Everyone is very clear that we will not reach a resolution this year or next year, but that over 10, 20 or 30 years we might. I hope that if there is any good to come from this conversation, it will be in bringing our attention back to that big strategic picture, and using the case of Dutch nitrogen to take a broader view about nutrient pollution.

Sometimes I am inclined to think that there are analogies here with climate change. When you look at the overall carbon burden in the atmosphere, and take a view of how you can divide up the carbon budget, you look not just at coal but at aviation, transport, waste and agriculture. Perhaps the same is now needed on nutrients, whereby we can look across the economy and devise a strategy that takes a long-term and strategic approach, taking action in all of these different places where we need to make progress, not just in one. I hope that that is where we will head in the years to come, and we will put investment and policy behind this in ways which are going to make the difference needed.

The Chair: In the meantime, we have this total ban, and not enough houses for people to live in.

Tony Juniper: This is where we have been working very hard. As Alan said, the mitigation scheme that we proposed was not adopted immediately. It took a while for the Government to back it but now that they have we are working very hard to get the mitigations in. We have already freed up some several thousand houses around the Solent, getting on for 1,000 in the north-east, and we are working very hard to get more of that put in as quickly as possible.

Lord Faulkner of Worcester: I have a very quick question. What happens if the people you deal with decide to ignore the advice that you are offering? What sanctions do you have to make them do what you want?

Tony Juniper: We do not necessarily want to make them do anything. We are offering advice, and they can do what they want.

Alan Law: It is advice. The risk for them is that someone else, for whatever reason, chooses to legally challenge their decision. That could be a competitor housebuilder; it could be a nimby, who does not want a development near to them. Our advice is simply that this is our understanding of the legal position.

Tony Juniper: It is fair to say that the only legal challenge we have had against the position we have taken on this has been from people who took the view that our policy was too weak.

Baroness Warwick of Undercliffe: I just want to go back to the point you were making about discussions on guidance, and the issuing of guidance. There seemed to me to be a lot of rather important assumptions being made by civil servants about what local authorities might or might not do. Was there an opportunity to discuss, either with LPAs or with representatives of local authorities, what their view was about what might happen?

Alan Law: That was the discussion that we had with Defra and DLUHC in the lead up to the issuing of our advice. The clear view from those departments informed by their legal advice was, “No, the minute you go out and signal to the industry that this is coming, that will mean the cessation of planning applications”. We would, in the normal course of events, seek to have that kind of confidential discussion with some of our partners.

Baroness Warwick of Undercliffe: Absolutely.

The Chair: I still want to get to the mitigation schemes at some point, but before we move on, could I ask a question you might not want to answer because of legal confidentiality? You had your legal advice on what the Dutch-N case meant for the UK; you discussed it with Defra and DLUHC—you have described that to us—and they had their legal advice. Were there any significant differences between the legal advice that you and they and the various lawyers received, or were they all singing with one accord from the same hymn-book?

Alan Law: I am not aware of significant differences. There was certainly a view early on to test our advice rigorously, and that view went across departments.

Tony Juniper: As I recall, there were discussions about the alternatives and whether there was any that we could do something different. That was very strongly interrogated, was it not? It was the view in the end that actually we needed to take the course of action that we are now taking.

Some things that were considered, as I recall, included whether housing could be regarded as IROPI—imperative reasons of overriding public interest. The view was that the legal position that had been discussed was the right one, so that is where we finished up.

The Chair: If everyone is agreed, we shall move on to the next question.

Q156 Baroness Cohen of Pimlico: I think we have already been discussing it, but my question is this. What is the process for Natural England to contribute to policy development at Defra and DLUHC?

What struck me forcibly was that Natural England employs just over 200 people—perhaps 260.

Tony Juniper: No, many more; it is closer to 3,000. England is a bigger country than we sometimes think, and it is quite complicated.

Baroness Cohen of Pimlico: Sorry. I will go on with the question as written. What is the process for Natural England to contribute to policy? How would you describe the process? Are you always consulted? Do you regard yourselves in the lead or do you regard the Environment Agency as in the lead?

Tony Juniper: It is quite complicated, like all these things, and there are a lot of different layers to it.

On how we contribute to policy development, one dimension is conversations that I would have as chair with Ministers, at a very high level very often. We are asked for advice on certain subjects, where government would like to develop a policy position. Sometimes that is through a formal consultation, so we will consult, and sometimes it is through internal processes. There are quite a few different ways.

Alan Law: We will respond as the statutory consultee to all government policy consultations insofar as they reflect the environment.

Baroness Cohen of Pimlico: Because that is what a statutory consultee is.

Alan Law: We also engage directly with Defra and, to a lesser degree, with DLUHC and other departments, around their development of policy. We then work with those departments around the development of implementation plans for policy.

For example, we advised the department on the formulation of its policy on biodiversity net gain, which went into the Environment Act. We have continued to advise it on the development of what is called the Defra metric—the metric for calculating units of biodiversity loss and units of habitat creation. We are working with it on the development of the system that will operate once biodiversity net gain becomes fully operational in November and then next April. We will take on the delivery functions under delegation from Defra.

Our involvement is both early, around concepts of a policy, and then all the way through to operational implementation. There is quite good Defra governance in place—our chief executive sits on the environment committee, for example, within Defra—where policy tensions and policy opportunities will be discussed and decisions made.

Baroness Cohen of Pimlico: I have a supplementary question to that. Why do we have two agencies, yours and the Environment Agency? Surely there is some overlap that is not particularly productive.

Tony Juniper: There is massive overlap, and not just with the Environment Agency but with the Forestry Commission.

Alan Law: And lots of others.

Tony Juniper: These are tracks of statutory responsibilities that have evolved over quite a long period.

Indeed, Defra produced a Green Paper in March of last year, looking at options for modernising the system. So far, it has not been taken beyond consultation, but one thing it was going to look at was different arrangements for reconfiguring the Defra bodies. Do you put the Environment Agency, Natural England and the Forestry Commission together? Do you put a bit of Natural England and a bit of the Environment Agency together and a separate floods agency? Do you put the Forestry Commission together with Natural England, and split up the EA into two different things? There are many different ways in which you can configure it.

The view I took as this was going on was not so much to go straight to structural solutions but to think about how we can work together better in any event. These are very important conversations to have. Whether or not we go down a structural route, and even if we do restructure the agencies, there are still going to be overlaps and potential synergies that we need to manage in how we work together.

To that extent, recently we have instituted regular chair and chief executive-level meetings between ourselves, the Environment Agency and the Forestry Commission, with the aim of trying to find the overlaps and synergies in order that we can get best value for public money, apart from anything else. Never mind taking a slightly different approach, duplication is not a great thing.

In the interests of efficiency and better delivery, we are trying to do that. Those conversations inevitably will continue, and I am sure they will come back at some point. I do not know what the right answer is; there is never a right answer, is there, to structural things?

Baroness Cohen of Pimlico: I was looking in hope for the right answer. If you had to invent the system again, what would you do? It does not sound like the best system I have ever heard, though one sees all the historic reasons for that.

Tony Juniper: On better ways of doing things, there are policy tracks as well as agency tracks. One that is really important in the space we are discussing today is the overlaps between local nature recovery strategy and the development planning system, and how these two things could be much closer together. If you had one system that was planning nature recovery and development planning at the same time, it would potentially make things more straightforward, quicker and more efficient, with less conflict in the system. We do not have that at the moment; we are still doing these things separately.

Alan Law: There is considerable potential for join-up at the strategic level. It might interest you to know that this question has been looked at a number of times. The overlap around operational casework is about 15%. We actually do most of our casework with customers on the ground separately, and we always overlap on big schemes—rivers, big structural projects, infrastructure projects, and so on. We are providing different technical advice. We are not providing the same information or advice on those projects; we are providing different advice.

The issue of how you deliver for nature strategically is one that we share. The technical advice that we offer to customers through the planning system and licensing, for example, is very different.

Baroness Cohen of Pimlico: I ask because one of the things that people always tell us is that you are short-staffed everywhere. Everybody is short-staffed.

The Chair: I think we have dealt with the staff issue.

Baroness Cohen of Pimlico: But I wonder, if you pick away at the structure, might you be able to sort the staff issue a bit.

Alan Law: I do not know if this is contentious but I do not believe we are short-staffed. We have arrived at the position as of now where we have the level of staffing that we need to do the task that is being asked of us. We are playing catch-up around some of the evidence that we were not able to invest in as much as we would have liked over the previous decade, and because we have brought in over 1,000 new starters in the last two years, there is some development work to be done around skills. However, I do not believe in absolute terms that we are short-staffed.

Q157 The Chair: Since you mentioned biodiversity net gain, could I ask a question? We have heard in evidence, I think, that your ambition is that the net gain has to be demonstrated, not simply modelled, before the planning permission can be granted or implemented. Is it the case that you are eschewing an approach based on modelling?

Alan Law: I would have to think about that one. I do not think that is correct. In the normal course of events, what we seek to achieve is provision of habitat—where you know habitat is going to be lost, provision of new habitat before it is actually lost. We do prefer that because, otherwise, you are in a perpetual state of jam tomorrow, when we know the environment is already damaged and the state of nature is declining.

However, the scheme as it is currently designed operates with a requirement for developers to look first on-site for delivery of their biodiversity net gain; secondly, if they choose not to or cannot deliver that on-site, to look off-site; and then there is a clearing mechanism which is the statutory credits scheme. That statutory credits scheme is not predicated on delivering habitat ahead of planning permission—far from it.

The Chair: My point is that I can very easily see how that would lead to all of the biodiversity net gain being provided off-site, because you could say, “I can buy something here; this is in Northumberland, a beautiful thing that is growing and expanding. In order to demolish and prepare the ground for my site, there will be a loss of habitat, but if I have to demonstrate that it has been recreated on my own site, of course I cannot do that until I have built it, so I will not even bother doing it on-site; it just delays everything and it makes everything very complicated, so I will just buy it somewhere else and that will be that”.

Alan Law: Our indication from the developers that we have worked with is that the larger developers—I mentioned the developers industry group, and Berkeley Homes is one of the developers on that group—are keen to implement biodiversity net gain. Indeed, they are already implementing it on a voluntary basis, but they will do so on-site.

The Chair: We are also very concerned here about small builders, and not just because we like small builders because they are cosy and furry; it is not that. It is because we have seen a huge concentration of homebuilding into a relatively small group of large companies which dictate their own pace of building in this country. If we want to increase the numbers being built, frankly, we have to break out of that circle because they have a fixed quantum of capital and a fixed rate at which it suits their capital base to build. Our concern for small builders is not simply a sentimental one; there is a real structural problem in the industry.

Tony Juniper: Understood.

Alan Law: I may be missing your point here—apologies if so—but the larger ones will do so on-site to a great degree. What I tried to describe was the system of looking for off-site or the credits scheme, which we think is most likely to be taken up by the small builders. The credits scheme does not require habitat to be created before planning permission is granted, so you can buy credits.

The Chair: This is like the Environment Bank, which we have had, but it is very small and has only just started. You expect a lot more to come along, I presume.

Alan Law: The intent is that Natural England will operate a clearing house, as it were, which is the statutory credits scheme that developers can buy into, and that they will be able to buy into in an unlimited way from the outset. The Environment Bank and other potential private sector providers can provide local off-site biodiversity net gain credits, which developers can purchase, or not, as they choose. Our credits scheme is there to ensure that, if there is a shortage on the market of off-site biodiversity net gain locally, there is an assurance that developers can buy into a scheme and progress with their developments.

The Chair: Then you would use the money that goes into Natural England’s purse from that credit to do what—what the Environment Bank does?

Alan Law: To establish those habitats, that is right, which we would do through third parties, through people like the Wildlife Trust, the National Trust, and potentially directly with farmers, whilst the market is establishing itself to the point where developers can go and procure their credits locally with whoever offers them the best value. Our role then becomes one of assurance around quality.

Lord Berkeley: Can I ask a quick question, Chair? You said “locally”; if I lived in Devon and I wanted to build a house and I did not have any area to do the net gain, could I have a net gain in Cumberland?

Alan Law: The idea is that you should have a local off-site market supply, but if that supply is either not there or is oversubscribed, there is a national clearance scheme which we will operate, which means it does not have to be delivered in Devon.

Q158 Lord Carrington of Fulham: Coming on to SSSIs and the issue around them, we are told that something like 60% of SSSIs are not in the best of condition. Clearly, this raises a number of issues. It raises the historic question of why 60% of them are not in good condition—although there are probably as many reasons as there are SSSIs as to why that is the case. Then there is the question as to what should happen about it and how quickly they should be brought up to a suitable condition, and, indeed, how you determine new SSSI areas and what impact that has on development and on the wider planning issues. I would really like to know what your thoughts are on that and how we can get out of what looks like a pretty ropy situation.

Tony Juniper: I will have a go on that, and then Alan can come in. Just to give a little context, in England we have more or less 4,200 sites of special scientific interest, most of which were declared for reasons of their biological interest, although some of them are geological sites and some of them both. Those 4,200 more or less cover 8% of England—a very significant proportion of the land area—and they have been notified over many decades, and we are still in the process of filling in gaps in the series. They were originally designed to be a representative series of the biological and geodiversity of England and so to keep a set of assets which represent the natural character of this country.

The fact that most of them are in unfavourable condition is a very troubling statistic and is the result of a range of factors. The big ones are undergrazing and overgrazing; quite a lot of them are pastures of different kinds, for sheep, cattle or ponies involved in maintaining the special interest; some of them are suffering from the effects of pollution, both air and water.

This is where the situation becomes particularly tricky because, if you look at the maps of the SSSIs and you see the red line on the map and you see that inside it is unfavourable, if it is grazing, we can generally do something about that, by working with the farmer to say, “Can we have fewer cattle, more sheep?” or vice versa, depending on the local circumstances.

When it comes to air and water pollution, it is more difficult, obviously, because these things sometimes are very remote, and this is when we circle back on to nutrient neutrality, because the sites that we are trying to defend from excessive nutrient pollution are all sites of special scientific interest. They are declared additionally as special areas of conservation or special protection areas under EU directives. This is the nature of the challenge; sometimes the pressures that are causing unfavourable status are quite remote and they are beyond the control of what we can do inside the boundary.

As Alan said earlier on, assenting and consenting to activities inside is really the lever we have. We can work outside in some cases, as we have done in relation to the Dutch nitrogen case, but the pressures are often not inside the boundary and therefore raising these other questions.

The air pollution is very widespread. I was recently at a national nature reserve on the border with Wales—Fenn’s, Bettisfield, and what is the name of that moss? It is a peatland area, and it is suffering heavily from nitrogen fallout coming from intensive chicken farms some distance away; it is coming on the air, and so that raises questions about how we engage with that sector to be able to get these places into good shape. That is the nature of the challenge.

Of the SSSIs, we manage about 5% of them, so 95% of them are in private ownership. Some of them are in the hands of very large landowners like the Ministry of Defence, the National Trust, the Duchy of Cornwall—those kinds of owners. We work with them at a strategic level as a major landowners group, and we have good conversations with them about how to do better on these places.

We are now in a situation where we are playing catch-up because, during that period from 2010 to 2019 when the budgets were going down, some of these places were not visited for a long time. We are in the process of updating our evidence base, trying to find out exactly what is going on, and then to come forward with proposals that can, hopefully, help us move the dial in a positive direction.

There is a statutory target on this of 75% in a favourable condition by 2042, so we have a legally binding target to get these places moving on to a positive trajectory. Of course, that in turn then links into these global accords around nature recovery, reducing extinction risks and some of the things that have been signed up to recently on the international level.

A major part of our work is getting these places into good condition. They are the jewels and the crown in terms of this country’s natural assets and, at the same time as we are trying to move them into that journey towards better status, of course we are still declaring or notifying new ones, and these come forward mostly through the area teams. When we know there are gaps in the series, we will publish a pipeline of places that we think are going to fill those gaps. I cannot remember exactly what the gaps are at the moment—waxcap mushrooms come to mind—but there are various other things which we feel as though we do not have enough of.

Lord Carrington of Fulham: I want to come on to new SSSIs in a moment, if I may. Picking up on something you were saying about working with big landowners particularly—I am thinking partly about the Ministry of Defence here, obviously, and the problems that exist in Dartmoor and so on—you say you work with the Ministry of Defence, and indeed the National Trust, and presumably the big landowners and big farmers and so on. Do you have enforcement powers? Can you actually instruct them to do it?

Tony Juniper: We do.

Lord Carrington of Fulham: Do you utilise those enforcement powers?

Tony Juniper: On the enforcement side, it is not so often. We try to avoid it where we can. Alan probably has more understanding.

Alan Law: We will use enforcement powers where there is overt damage. Again, a high-profile case recently on which we did enforcement work with the Environment Agency was in the River Lugg with a particular landowner there. We do not use enforcement powers routinely on sites with land management, in part because, coming back to the point I made earlier, forcing people to do things is not necessarily the best way of getting a long-term result, so we do try and work with people rather than exercise coercion.

SSSIs have been enormously successful. Whilst the statistic is that a lot of them are not in favourable condition, over the last 50 years they have stemmed widespread species extinctions across the country through being managed to look after rare and vulnerable species that otherwise would not be there. However, what we know is that you cannot protect the environment through trying to micromanage small islands, or 7% of the land, in isolation, so our focus on recovery is about trying to rebuild ecosystem health and resilience by looking at that wider landscape. We need to work on-site for management, and we need to work in the wider catchment or the wider landscape to deal with wider diffuse pressures.

Lord Berkeley: Could I just interrupt there? Lord Carrington mentioned Dartmoor and you mentioned sheep and cattle and things; there is some inquiry going on at the moment, is there not, about the future of Dartmoor? Is it because there are too many sheep, or is there an argument between farmers and different types of users? That is a challenge, is it not?

Tony Juniper: There is an inquiry into the future of Dartmoor in relation to nature recovery, and this follows some recent discussions around agri-environment schemes and their renewal and how to make them effective in relation to vegetation and bird populations, which have been going down despite very large sums of public money being spent to incentivise different behaviour. Evidently, there needs to be a change in the trajectory there, and that inquiry is now looking at the best way to achieve it. It is chaired by David Fursdon, is it not?

Alan Law: That is right. It is not as simple as too many sheep or too few sheep; it is changes in species and changes in grazing management.

Tony Juniper: More cattle in some places and less in others.

The Chair: I am going to intervene just to say, on a procedural point, the House has started to debate something on which we are likely to have two votes in succession. We do not know when they will get to the votes, but it would be a break longer than 10 minutes to do two votes. I am anxious now; I am thinking we need to make progress.

Q159 Lord Carrington of Fulham: Let me ask you two quick points to keep the Chairman happy. The first is: what degree of consultation is possible before the designation of an SSSI? Tie that in as well with this question of the 30 by 30 rule coming out of the Montreal conference, which strikes me, having been a practising politician for most of my life, as being a political fudge in the sense that it is a wonderful ambition but nobody has actually thought whether it is capable of being delivered within that timeframe. Were you consulted on that, or was that driven by all the short-term requirements that politicians are often driven by?

The Chair: Has it affected your standards for designating new SSSIs or other protected areas?

Alan Law: I will do the SSSI bit. We consult exhaustively pre-notification, and notification is the point where our chief executive makes the decision that, in her opinion, a site is of special scientific interest; we then consult formally, and a decision has to be taken by our board if there are objections, within nine months of the chief executive’s decision giving the notification.

Our processes over the last 30 years have changed enormously in this area. We are under much greater scrutiny around being able to demonstrate the scientific evidence on which we base a decision down to every parcel of land and where the boundary is placed in that land. We invest significantly in the evidence gathering in the lead-up to any decision that is taken around notification and, during that period, there is extensive pre-notification consultation—informal consultations—so we know at the point of designation what the likely levels of contention are around the designation.

We have a duty in law to notify sites that we consider of special scientific interest. That does not mean that every area of land that could possibly meet those criteria needs to be designated; we look for representative selections across the range of species and habitats and across the geography. We are currently designating in the order of 10 SSSIs a year. This is not like the 1980s, when that figure would have been in the hundreds; it is relatively small but, to be candid, some of them are the more contentious sites that have been on the books, as it were, for 20 years and more. We are looking at those now and taking a view on whether they should be designated or not. It is quite a jump between that and the 30 by 30, because I do not think we are assuming all of the 30 by 30 is SSSI.

Tony Juniper: That is a very good connection into that second half of the question. With 8% of England in an SSSI and 4,000 of them in that figure, the few tens that we are going to be producing over the coming years are not going to close the 22% gap that exists. We are going to have to be looking at other means of being able to achieve that global commitment.

In the jargon of the United Nations convention is an idea called other effective area-based conservation measures—OECMs is the acronym; there is always an acronym with these things and OECM is it. This refers to other measures that are not legally binding protected areas of national parks or SSSIs or nature reserves that are underpinned by law which countries have. The UN has said we are going to need another mechanism to reach that target which is not the usual legal route, and so Defra is looking at that now, and we are advising Defra.

On the origin of that 30%, it goes back to the United Nations General Assembly in September 2020, when our Prime Minister at the time signed up to a so-called Leaders’ Pledge: a group of countries came together and said a number of things about leading on biodiversity, including that they would do 30%, and the United Kingdom was one of those. We welcomed that, and we have been advising Defra since. I went to Montreal with the British delegation to support the UK’s efforts on the global stage, and I have to say the UK negotiating team did a fantastic job of bridging differences between countries on a whole range of subjects to come through with what is a very ambitious agreement with 23 targets in it.

Just circling back on a previous bit of the conversation, one of those targets—target 7—is to reduce nutrient pollution by 50% by 2030, and what we are talking about is keeping it where it is with nutrient neutrality. We have signed up to something which is going to require deep cuts in what is, as we discussed earlier on, a really complicated multisector challenge, with agriculture, of course, being a big bit of that and a bit also coming from transport.

Defra is working through what this means in terms of action. We are working through what it means for our delivery work, and, as we go along, we are trying to get as closely aligned as we can with the Government in terms of what it wants to do to make sure that we are using our resources to the best possible effect, and that discussion continues. The first step was the Environmental Improvement Plan published in January, but there are still gaps. For example, also in target 7 is a commitment on pesticides. We do not really have a plan in the country yet to reduce the impact of pesticide and other toxic pollutants by 2030 by 50%. This is a huge deal as well.

There is a lot in there, but it is a fantastic platform for action. If the world can implement this, we may still yet avoid the mass extinction of animals and plants, which is now building across the world and which we need to avoid for reasons of economic security and social wellbeing. Hopefully, the UK will play a leading role in being able to show what an advanced, industrialised country can do in reconciling these big challenges between economic development and ecological recovery, and that is where our work is located.

Lord Carrington of Fulham: Were you asked ahead of the agreement in the United Nations General Assembly decision for your advice as to whether 30 by 30 was the right number?

Tony Juniper: Yes, we were. I recall conversations going on between some of our specialists and Defra, and there is scientific rationality to that 30%; it is not a number just pulled out of thin air. Actually, some other people would say we need at least 50%; the great ecologist, Edward Wilson, had the idea of half the earth needing to be protected and the other half sustainably managed, not trashing the other half because half is protected, but to be looking after the whole system with the recovery of nature being its principal objective. The 30% number has a rationale to it which is based upon scientific evidence.

Alan Law: We are feeding in on the definition of what is going to count and how it is defined.

The Chair: I am just being a little careful. I have declared my interest as a member of the board of the Ebbsfleet Development Corporation; in fact, even in that context, I have no interest in the following question but I have local knowledge because of it.

In the case of the SSSI you designated on the Swanscombe peninsula approximately two years ago, that was a site where the Government and the House of Commons had created a designation for a project which it regarded as a nationally significant infrastructure project, funded, as it happened, by the private sector. The private sector entity has since then, perhaps understandably, gone bust and is in administration. We are looking at how the different arms of government work together here, so you have an NSIP on the Swanscombe peninsula that goes back five or six years, and then you come along and designate it. How do these factors work together?

Tony Juniper: You have a go, Alan. The statutory duty that we have is to act upon our scientific evidence, which says whether or not a place is of special interest and then, if it is declared as of special interest, that triggers a series of discussions, some of which are mediated through the planning system. Planning does not necessarily stop, but it does need to take account of the special interest, and that is what that notification did.

Alan Law: There are two things here. First, Tony described how we look at future designations; it is a combination of area teams—our local operational teams—identifying places on the ground that are of high environmental standard and critical environmental infrastructure, as well as our national teams, our national specialists, identifying particular types of habitat or species that are underrepresented nationally. There were a series of sites around the Thames that come into that category around species interest groups that are underrepresented on our SSSI series; that is how it came on-site. The point around SSSI designation is not to say, “This area must be locked as it is in perpetuity”; it is to ensure that planning decisions that are taken about it in the future recognise the environmental importance of that place.

The Chair: I understand that. A number of us have served on local authority planning committees and I realise planning permission can be granted for development in an SSSI, but, in practice, the burden of proof is so high and the risk of legal challenge so high that it is quite close to a sterilisation.

Alan Law: Again, I would challenge that. Where there are areas that are proven to be of national importance on an SSSI, or indeed previously on a European site, we will work both with local authorities and with developers to look at how that can be accommodated and provide for compensation. For example, a number of years ago I worked on a case in The Humber, where 70 hectares of the site was taken out and developed as a port because it was demonstrably strategically important for the offshore wind industry and the generation of that. We recognised that and worked with the applicant around demonstrating its overriding public interest case and providing for the necessary compensation around it. It is a case of saying that we want the environmental importance to be recognised, but they are not set in stone; they should only be damaged when there is actually something that is of greater strategic national importance and, in those cases, compensation should be provided, but we work with developers and authorities on both fronts.

The Chair: If we have exhausted that, can we come to Lord Best, who I know has to leave quite soon?

Lord Best: We may all be leaving quite soon.

The Chair: We may, but Lord Hope is on his feet, so there is hope.

Q160 Lord Best: You have done some justice already to my question, which is about environmental regulations simply one after another being bolted on to the planning system in this piecemeal way. You have already expressed the view that bringing together nature recovery and planning would be infinitely better, and you have also said that you have the staff to deal with these issues.

Your partner in this, the planning half, does not have the staff to deal with you and to deal with these issues; they are incredibly under resourced. If you feel that you are okay in terms of the expertise that you can bring to the table, this is a very unequal match because, at the local level, we are seeing that planning departments have been denuded of people, particularly people with expertise. Feel free to comment on this, or if you just want to accept that that is the position we can move onward; I have another question up my sleeve.

Tony Juniper: We would agree with that, I think, Alan. Sometimes there is not a huge capacity for ecologists in local authorities to be able to work with some of these new requirements—for example, local nature recovery strategies—but we are putting in quite a lot of resource ourselves to be able to help with this. What do we call it? We have a legal role, have we not, in the legislation? Are we a supporting authority?

Alan Law: Yes, around local nature recovery strategies.

Tony Juniper: Yes, around local nature recovery strategies, and we have hired one person per competent authority, so we have 50-odd officers, who will be able to work at county level to support these processes. Hopefully, that can help close a bit of that gap, but more would be good.

Q161 Lord Best: Thank you for that. As a finale, I wanted to return to nutrient neutrality and, indeed, water neutrality, because this is such a big part of where our inquiry is taking us. The impact of these new measures is so enormous, particularly for those of us who are very keen to see more homes being built, that I need to return to it.

As I see the position, after your comments, the fact that the housebuilders are being held responsible and regulated rather fiercely is a consequence of the Environment Agency having responsibility for the agricultural side of things—not you; this is somebody else. You mentioned chicken farming waste going into the chalk streams. In Holland, they are concentrating on intensive farming and the fact that it is the agriculture that needs remedying. I see they voted €24 billion as the budget to bring their nitrogen emissions down by 50%. What I have learned today is that this is not your problem; this is, in fact, the Environment Agency not getting a grip on the agriculture side of this—leaving you, in effect, to be the policeman for the construction industry because there is not enough going on in terms of curbing intensive farming and its consequences.

Alan Law: I think that would be overstating it. I would not want that to be left as our message to the committee. We work as a Defra delivery body; the Environment Agency does likewise. Our job is to try to work with the Environment Agency to deliver the policies of Defra and wider government. I do not think we would want to say that we simply pass the buck on to the Environment Agency. Our advice in the planning system relates to development and not making things worse. We are absolutely clear that the long-term solutions to improve these catchments involve a combination of improvement of sewage treatment works—the Government have announced the intention to get to technically achievable limits by 2030 through water companies—as well as improving the regulatory regime around agriculture. I would not put too much blame simply on the Environment Agency. There needs to be the right political spheres around where and how much you regulate.

Tony Juniper: Indeed, and there is another point to add to what Alan just said. There are some policy tracks here that, hopefully, will open up opportunities to be able to deal more with the agricultural side of this. One is the new environmental land management scheme—the new post-EU agricultural policy—which has been geared much more to environmental outcomes than it was previously in terms of how public money was put into the farming sector. The Sustainable Farming Incentive, revised Countryside Stewardship and so-called Landscape Recovery are new schemes that will incentivise farmers to do better, which will lead, hopefully, to reduced pollution of the environment.

There is also work that we do, in partnership with EA and Defra, on the so-called catchment-sensitive farming, where we are out on farms with people advising on slurry stores and on how to manage animal waste in ways that are going to avoid it getting into rivers. Then, the other place where there is a set of connections between land and nutrients is the water company and the price review that is going on at the moment, and the extent to which nature-based solutions will be part of what Ofwat says the water companies can now invest in in this new asset management period.

So this is about joining things up. If I leave you with one message which touches on pretty much all of the conversation we have had today, it is the need for integrated approaches, looking at air, water and land, planning, nature recovery, all as different faces of the same challenge rather than coming in silos and then clashing with each other because, as long as we continue with that, then the longer the conversation goes on without us getting to a resolution. If we can build truly integrated approaches, we might find that we start to get some breakthroughs and things move more quickly and more efficiently. We spend a lot of our time trying to do that, working in partnership with agencies.

Lord Berkeley: Could I just follow up on Lord Best’s question? From what you have said, it seems to me that, if I wanted to build some new housing on the banks of the River Wye, I would have big problems with nutrients. If I wanted to build a chicken farm in the same place, it is down to the Environment Agency, and something will happen some time, but we will probably get away with it. My understanding of Lord Best’s question is that it does seem unfair. I know you say you are doing lots of things to try to mitigate it, but at the present time it does seem pretty unfair. Have I got it wrong?

Alan Law: I am not aware that there are big chicken factories that have been built since nutrient neutrality was announced. You may have information on that that I do not.

Lord Berkeley: No, sorry. I did not say there were. I said if I wanted to.

Alan Law: Hypothetically, if an application came in that was of a scale that registered under the Town and Country Planning Act, we would certainly engage with that. Similarly, if there was a large application that came in that the Environment Agency was the regulator on, we would give advice to it, but we have a different statutory relationship. We have different statutory duties in relation to the Nitrate Pollution Prevention Regulations 2015 compared to the Town and Country Planning Act.

The Chair: Are there any supplementaries?

Lord Best: I am just thanking both of you. I am glad to draw you out on that.

Q162 The Chair: I am grateful for that. The Minister is not yet on his feet—that bell, incidentally, is for the Commons—and we have a few minutes left; when the Minister is on his feet, that is our prompt to get ready. So may I return to my question about mitigation?

You described, early on, a mitigation scheme, and I would just like to be clear in trying to understand what we are referring to. These are very practical questions here now. As I understand it—and I may have this wrong—the only mitigation scheme that you have up and running is in the Tees Valley area.

Alan Law: We have one up and running in the Tees Valley. The one that has been up and running the longest is the one in the Solent.

The Chair: That has been set up by the local authority.

Alan Law: The conception of that was very much with us and the Wildlife Trust.

The Chair: The hope for homebuilding, in your conception, is in these schemes, which are only available locally. At the moment, as I understand it, if you want to build a house in Devon, you cannot offset it in the Tees Valley, so it only applies within the catchment area. Logically, it follows that you need to cover, if not the whole country, at least all of the vulnerable areas that include the 70-odd local planning authorities in similar schemes. Do you have a timeline for when you expect to be able to have done that?

Alan Law: My team will have a timeline. I would happily provide that in writing if you would like that.

The Chair: Would you mind? I should say that, in general, we are very happy to take any subsequent evidence you would like to give us in writing in the next few weeks, so we can absorb that. An answer to that would be very helpful because, clearly, it is crucial to unlocking development in the areas that are affected.

Alan Law: We have a £30 million budget to put schemes in place across the affected catchments. DLUHC has also announced a £100 million budget that it is providing to the affected local authorities for comparable schemes. We are aware that some local authorities, working with housebuilders and others, are developing their own projects as well. Again, notwithstanding that we do not want to see this as the long-term approach, a market will develop fairly swiftly here.

Q163 The Chair: As I say, an answer would be helpful. Can I ask a slightly uncertain follow-up? I am not sure whether what I am about to say is correct, but I have heard from a developer that the ratio of offset, if you are considering arable land, is something of the order of a hectare of arable land being taken out of production to compensate for six houses. Is that a ratio you recognise? Clearly, it would be different if the land was being intensively farmed with a pig farm or something—there would be a smaller amount of land—but is that roughly the ratio?

Alan Law: That ratio could be correct in a certain situation. I do not think it is a universal ratio.

The Chair: Is it a country mile away from reality? No?

Alan Law: I do not think I can give you a definitive answer on that; it simply depends on the capacity of an area of land to take nutrients out of the system. That will vary according to how that land is currently being used and what level of nutrients are going in.

The Chair: Rather than speculate, could we look at the Tees Valley area, which you have set up already and, presumably, therefore, you can point to actual examples because I think you said 1,000 homes have been built on the back of that scheme. After the meeting, would you be able to provide us with information about the amount of land and the type of land taken out of production? Also, if it is not too difficult, if you have it, could you include the agricultural grade of the land? This would give us a picture of what, if anything, is being lost to food production, which is another element in all this.

Tony Jupiter: Of course. What you are touching on now is the subject matter of another Lords committee that reported about a year ago looking at land use.

The Chair: Yes, we are conscious of that committee.

Tony Jupiter: This is one of the key questions that we are constantly aware of as well. In relation to this particular subject, maybe the exam question would be: in meeting these nutrient targets through putting land into this purpose, what can we do on exactly the same hectare to reduce flood risk, to catch carbon, to provide for nature recovery and to improve public access?

That would be a way of getting considerable efficiency uplift in the use of the land if we could start looking through those kinds of approaches, rather than carbon here, nutrients there, flood reduction somewhere else, a nature reserve on another bit of land. If we are clever, very often these things can occur in the same place, which I think would speak to the spirit of what the other Lords committee said about scarce land and trying to find the optimum ways of using it.

The Chair: The Minister is not yet on his or her feet, so are there any final supplementaries?

We are extremely grateful to you for your time, but I do not want committee members to feel that they have been balked of the opportunity to ask any questions. There are no other questions, so could I thank you both very much for the time you have given us?