Environment Bill, House of Lords, Second Reading, 7 June 2021

• We welcome the reintroduction of the Environment Bill. A legacy of the COVID-19 pandemic must be that we, as a nation, grasp the opportunity to protect and enhance our natural environment, and tackle the climate emergency. It is vital that we continue to improve air quality, protect against flooding, and ensure our transport, waste and energy policies are environmentally sustainable.
• Local government is already prioritising environmental goals, including leading the way towards achieving net zero carbon, increasingly with ambitious plans to achieve this before the Government’s 2050 target. The LGA is supporting councils to deliver on their environment ambitions through sector-led improvement work such as the climate change improvement and support programme.
• The Environment Bill will create powerful new laws to protect and enhance the environment. It is a wide-ranging and important piece of legislation, and we welcome the potential of the Bill. Our amendments seek to work within the ambition of the Bill, to enable it to be successful and workable at the local level.
• There is a bigger set of opportunities to deliver change if the Environment Bill is properly aligned with the Agriculture Act and the recently announced Planning Bill. Getting land use right is a key factor in protecting nature and meeting net zero targets. Councils are well placed to lead this agenda, and we want to work with government to develop a holistic approach to tackling the climate emergency across these key pieces of legislation.
• Local government wants to see measures that reduce the amount of unnecessary and unrecyclable material becoming an issue in the first place. We welcome the commitment for retailers and manufacturers to pay for recycling and disposing of packaging and household waste. This is a crucial stage in shifting the cost away from the taxpayer and back to the polluter. The Bill must set out clearly that producers will be required to pay the full net costs to councils.
• Following the delay to the progress of the Bill, councils and the waste industry also need urgent clarity on the timetable for implementation of the Government’s waste and recycling reforms. We support the principle of a consistent set of core materials to be collected in household recycling. However, how these materials are collected should remain a local decision.
• Internal drainage boards undertake important work around managing local water levels and flood risk management. Part 5 of the Bill (Water) includes measures intended to support new and existing internal drainage boards. Further clarity around the funding of this is required as councils part fund Internal Drainage Boards. In addition, the current cost of processing Land Drainage Consent applications are not being met by the provisions within the Bill. The Bill should be updated to give funding flexibility to local government and reflect increases in line with inflation.
• We support the principle set out in the Bill of increasing biodiversity net gain through the planning process. Where net gain contributions from developers cannot be delivered on site, any financial “credits” should be retained by councils so that local people will have a say in how they are spent.
• The Bill also provides greater enforcement powers to the Forestry Commission to reduce illegal tree felling and will require local authorities to consult residents. This is a new burden and must be fully funded. Decisions on the felling of street trees should remain a matter of local determination.
• The Bill points to a new environmental relationship between local and national government, with potentially greater responsibility sitting with councils. The impact of this is that councils will have a new environmental improvement role within their localities. Local government is well placed to take the lead on this agenda but to deliver on these ambitious plans they will need to have appropriately skilled staff and be given adequate resources.
• At this stage it is difficult to predict the impact of the legislation and the costs for local authorities in meeting their new statutory duties. We therefore recommend the Bill is amended to ensure an assessment is made of how the new duties are operating into the future and ensuring local authorities are sufficiently funded.
• The Bill currently does not include the term ‘full net cost’. There is a commitment to pay local authorities, but it should set out clearly that producers will be required to pay the full net cost to councils.

Part 1 of the Bill (Environmental Governance) makes provisions for the establishment of the Office for Environmental Protection (OEP). Public authorities are required to cooperate with the OEP, and the OEP may carry out an investigation into a public authority if it receives a complaint or has information that, in its view, indicates that a public authority may have failed to comply with environmental law. The OEP will be required to prepare a report for public bodies subject to an investigation, which will also be shared with the relevant Minister. The report will be required to set out any recommendations the OEP may have in light of its conclusions, however it is not clear whether financial impacts will be covered by such a report.

• The LGA recommends that the report include an estimate of the cost of responding to the issues raised in the report. If the authority is concerned about their ability to cover the cost the OEP should have a duty to raise this with the relevant Minister.

Part 3 (Waster and Resource Efficiency) includes provisions that will require producers to pay the cost of managing specified products and materials at end of life. We welcome this intention, the LGA has long called for the system to be reformed and for producers to meet the costs of local authorities, including the cost of littering and fly tipping discarded packaging.

While the Bill sets out the headlines of a producer responsibility scheme, it does not provide enough detail to assess the financial and service impacts of the reforms. Within the section on disposal costs, litter and fly tipping of discarded packaging is not included. Greater clarity on what producer responsibility will cover will support this analysis.

• The Bill currently does not include the term ‘full net cost’. There is a commitment to pay local authorities, but it should set out clearly that producers will be required to pay the full net cost to councils.

We welcome the Bill’s intention to strengthen local powers in relation to air quality enforcement. Existing mechanisms are decades old, misaligned with one another and need to be reformed to fit with modern sources of emissions.

The Bill updates, simplifies and strengthens the local air quality management framework (LAQM). In particular it ensures that responsibility for solutions to poor air pollution is shared across local government structures and with relevant public bodies.

Councils are already taking action on air quality by introducing Clean Air Zones, encouraging the use of electric vehicles with recharging points and promoting cycling. The LGA will continue to lobby for local government to be able to make long term investment reduce harmful transport emissions such as cycling and walking infrastructure

To help ensure successful implementation of the legislation, we would seek as wide as possible interpretation of relevant public authorities and as strong as possible duty for them to co-operate with local authorities in their clean air target. We would also seek for local authority air quality plans to override the national policy of public agencies where it is in direct conflict with air quality goals. For example Highways England should not exempt their roads from chargeable clean air zones except with local agreement.

Part 5 of the Bill (Water) includes measures intended to support new and existing internal drainage boards. Internal drainage boards undertake important work around managing local water levels and flood risk management. To fund this work, internal drainage boards charge the communities they serve. The Bill amends the Land Drainage Act 1991 to enable certain valuation calculations to be provided for in secondary legislation, so that necessary updates to the calculations (including data sources) can be readily made.

Local government must be involved in the development of secondary legislation, and this should ensure that councils views are taken into account before drainage boards are expanded or established. In addition, the council tax levy paid to drainage boards should not be counted towards the cap on council tax rises. Any additional costs should not fall on council tax payers.

A Land Drainage Consent is required from the relevant authority if certain types of works are to be carried out on an ordinary watercourse. As of the 6th April 2012, all Lead Local Flood Authorities (county and unitary councils) are responsible for ordinary watercourse consents.

A survey carried out by the LGA and ADEPT found that the median cost of processing application is £250, five times the nationally set fee of £50 (specified in the Land Drainage Act 1991) (Land drainage consent processing cost research, LGA and ADEPT 2018, unpublished). This means that local taxpayers are subsidising 80 per cent of the cost of processing land drainage consent applications because nationally set fees do not cover the full costs. We are recommending that:

• The Government should allow councils to increase the application fee as soon as possible to a level which more accurately reflects the processing costs. Analysis for the LGA showed that the mean cost of processing Land Drainage Consents was £340.41 and the median was £250. This should be a starting point and any revised application fee should sit within this range. 
• There should be a commitment to allow future increases to the national Land Drainage fee in line with inflation. Councils should be able to set higher fees locally, where there is a case for doing so.

We welcomed the finding of the Independent Review of surface water flooding carried out for Defra (August 2020).  We are concerned that further legislation on sustainable drainage systems would be a significant burden for councils in their planning role. We will be working with Defra and councils to take forward the recommendations of the review.

Part 6 of the Bill (Nature and biodiversity) includes measures whereby a “credit” system will allow the sale of proposed statutory biodiversity units where improvements on site are not possible. The Bill currently does not require that Biodiversity Credits raised from developments be reinvested in the locality. Communities that accept developments in their area should be able to see improved biodiversity. 

• Credits should be retained by local authorities so that funding stays in the area where development takes place, and local people can have a say in how this funding can be used to improve the natural environment.

Councils are one of the responsible bodies nominated to produce a local nature recovery strategy. This must include a statement of biodiversity principles and a local habitat map.

The process for drawing up a local nature strategy does not offer any additional protection to threatened habitats. The Bill could go further and give councils delegated powers to protect valuable habitats such as sites of scientific interest. Councils should also be able to require other public authorities to take account of the Local Nature Recovery Strategy in their actions.

Councils should be empowered to protect nature through their strategic planning role. The Environment Bill and the Planning Bill together provide an opportunity for councils to use their local leadership role to protect and restore nature. These two pieces of legislation must be fully aligned.

Part 6 of the Bill also provides greater enforcement powers to the Forestry Commission to reduce illegal tree felling and will require local authorities to consult residents. Tree preservation orders provide an established route for protecting trees as part of the local environment. Trees in conservation areas also benefit from protection in law.

• Decisions on the felling of street trees should remain a matter of local determination. This is a new burden and must be fully funded.
• The full impact of these costs must be considered in a formal consultation with local government.

A number of proposals in Part 6 of the Bill introduce significant new duties and responsibilities on local government, including:

• Local planning authorities will be responsible for requiring biodiversity net gain in new development.
• Duty for all public bodies to carry out a strategic assessment of the actions they take to advance and conserve biodiversity.
• Duty to produce a local nature recovery strategy with a statement of biodiversity principles and local habitat map.
• Duty to consult on tree felling.

Councils have experienced a decade of funding reductions, and this has led to many operating with significantly reduced environment functions. In addition, councils have entered a further period of financial uncertainty because of the impact of COVID-19 on income and additional pressures on services. 

At this stage it is difficult to predict the impact of the legislation and the costs for local authorities in meeting their new statutory duties. The impact assessment published in March 2020 says that the full cost of the Bill cannot be calculated at this stage because the detail will not be clear until the secondary legislation is drafted. We therefore suggest the Bill is amended to ensure an assessment is made of how the new duties are operating into the future and ensuring local authorities are sufficiently funded.