Insfrastructure Bill [HL]

Written evidence submitted by the Woodland Trust (IB 02)

About the Woodland Trust

1. The Woodland Trust, the UK's leading woodland conservation charity, welcomes this opportunity to submit evidence. Our vision is of a UK rich in native woods and trees, enjoyed and valued by everyone. We manage over 1,000 sites and have over 500,000 members and supporters across the United Kingdom.

Summary of evidence

2. The Woodland Trust’s chief interest in the Infrastructure Bill is focussed on ensuring that any changes to existing planning legislation and the remit of public agencies do not negatively impact on the ability of communities to protect their cherished natural environments, specifically ancient woodland, so that we can continue to conserve the very best of our natural heritage for future generations to enjoy.

3. We welcome several amendments to the Bill made in the Lords, but feel work still needs to be done in a number of areas. In particular, would like to see: environmental considerations placed at the core of the new Strategic Highways Company, and the watchdog and monitor that will oversee it; exemptions introduced regarding the deemed discharge of planning conditions; reference made to the importance of developing high quality new housing communities rich in trees; and fracking schemes disallowed in areas of ancient woodland.

Strategic Highways Companies

4. The Infrastructure Bill establishes that the Highways Agency will become a government-owned company tasked with managing and operating England’s motorway and strategic road network. The Bill allows for one or more strategic highways companies to become highway authorities instead of, or alongside the Secretary of State, with the majority of his/her powers and duties in relation to the roads included in the appointment of the Company, transferred to it. It would be the Company’s responsibility to determine whether an environmental impact assessment is required for schemes pursued under powers in the Highways Act 1980.

5. During its passage through the Lords, the Government introduced wording to oblige the Strategic Highways Company to have regard to the effect of the exercise of its functions on the environment, which is welcomed by the Woodland Trust. Likewise, the latest draft licence for this Company, running concurrently with the Bill, also now makes welcome reference to protecting and improving the environment following the Department for Transport’s consultations with the Woodland Trust, among others. It is important that this is not watered down and that the Company is effectively held to account against this commitment.

6. However, there is still scope for it to do more to ensure that environmental considerations are at the core of the new Company. The Trust believes that it is crucially important that the Strategic Highways Company is set up with environmental and economic considerations given equal weight. In our view it must seek to protect the environment, particularly irreplaceable habitats such as ancient woodland. In particular, we would like to see greater clarity as to the role of the watchdog and the monitor that will hold the new Company to account; as the two bodies that will scrutinise the Strategic Roads Network and in turn the delivery of the Roads Investment Strategy, it is vitally important that their environmental roles and responsibilities are clearly defined. The draft licence of the Strategic Highways Company offers an opportunity to deliver enhanced protection of the natural environment, ensuring that the Roads Investment Strategy has environmental outcomes and sustainability at its core.

7. With this in mind, the Woodland Trust would welcome the following amendments to the Bill:

a) Clause 8: line 35, insertion of the words "natural environment alongside" after "promote the" to ensure the Passengers’ Council (the watchdog) protects and promotes this as well as the interests of users of the highways;

b) Clause 8: line 45, insertion of a third item so that the watchdog’s activities may include investigating, publishing reports or giving advice to the Secretary of State on matters "impacting on the natural environment";

c) Clause 9: line 26, insertion of the words "including the social, economic and environmental costs" after "at what cost", in order to ensure the Office of Rail Regulation (the monitor) investigates, publishes reports or gives advice to the Secretary of State on these aspects when investigating if the Strategic Highways Company has achieved its objectives under the Road Investment Strategy;

d) Clause 15: line 35, insertion of a third item to ensure that the Secretary of State may provide financial assistance to ensure the watchdog and monitor are able to effectively carry out their respective duties of oversight of a Strategic Highways Company.

Environmental Control of Animal and Plant Species

8. The Woodland Trust is supportive of the proposed species control provisions set out in the Bill. Invasive non-native species (INNS) are among the biggest global threats to biodiversity, as well as having serious negative consequences for ecosystem services, the economy and public health. The Trust welcomes the positive amendments made in the House of Lords to the designation of species within the Bill and the on-going dialogue with legislators to enable the species control provisions to be effective. The Trust would also like to see environmental authorities given sufficient funding and provision to carry out these provisions. Many environmental authority budgets are already stretched, but eradication and control of INNS is vital and needs to be adequately prioritised and supported.

Planning and Land

9. Discharge of conditions. The Woodland Trust is anxious to ensure that any proposed changes to the procedures associated with discharging planning conditions (Clause 26) are not carried out at the expense of the natural environment. We are particularly concerned that measures will be put in place which deliberately curb the use of negatively worded conditions, such as those requiring habitat or species surveys or the submission of landscaping and planting schemes prior to commencement. Indeed, the Woodland Trust believes that in its proposals on the discharge of planning conditions the Bill does a great disservice to both Local Planning Authorities (LPAs) and the National Planning Policy Framework (NPPF) by assuming that conditions are an unnecessary burden instead of a vital tool for protecting both the natural environment and public amenity.

10. The Trust suggests that the Bill should first legislate against inappropriate conditions. Pre-commencement conditions often require outstanding ecological survey work to be carried out – planning permission should never be granted whilst these issues remain outstanding. Whilst it is doubtful that such conditions pass the 6 conditions test set out in the NPPF, the Trust is aware that this practice continues as LPAs continue to push applications through to meet targets. Fundamental problems such as this should be addressed prior to considering the speed of decisions.

11. The Trust would therefore like to see amendments to reflect the following aspirations:

a) That all applications within or adjacent to environmental designated sites or irreplaceable habitats such as ancient woodland are exempt from deemed discharge;

b) That all conditions pertaining to the natural environment and ecological surveys are exempt from deemed discharge.

12. Transfer of land to the HCA: Clause 27 of the Infrastructure Bill allows for the transfer to the Homes and Communities Agency (HCA) of designated property, rights or liabilities of a specified public body. During the Bill’s progress through the Lords, the Government introduced amendments to state that any such transfer scheme "may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry)." The Government has repeated that this is intended to clarify that the Public Forest Estate will be exempt from any such transfer – a welcome clarification that reflects lobbying by the Woodland Trust and other groups to amend the Bill to this effect.

13. We hope that scrutiny of the Bill in the Committee will ensure this protection is as strong as possible. However, and as Baroness Royall articulated during the Third Reading in the Lords, such clarifications would not have been necessary had the Government not reneged on its promise to bring forward legislation for the PFE in a Forestry Bill in the first place. It’s clear that these clarifications are in no way a substitute for the bringing forward of legislation for the Public Forest Estate; a specific Forestry Bill is still needed to settle the future of the PFE and for the avoidance of any future doubt or confusion as to its status. In evidence to the Environment, Food and Rural Affairs Committee on 26 November, the Environment Secretary, the Rt Hon Elizabeth Truss, stressed that she was committed to the Public Forest Estate, and to the publication of a Bill "when time is available". The Woodland Trust would like to see that legislation brought forward at the earliest opportunity after the election, regardless of who is in power.

14. Zero carbon homes; allowable solutions: The Woodland Trust believes that ambitious targets for low or zero carbon impacts should apply to all new housing developments. However, we acknowledge there are diminishing returns that might suggest alternative, off-site carbon mitigation could offer greater efficiency. We therefore welcome the addition of Clause 32 on off-site carbon abatement measures – particularly the sub-clause regarding actions contributing to the removal of carbon dioxide from the atmosphere. We believe that developers could meet zero carbon buildings regulations by creating new woodland under Defra’s Woodland Carbon Code. This would deliver multiple co-benefits, including employment opportunities and climate adaptation measures. Simply meeting the Government’s own woodland creation targets could, according to the analysis presented in the National Ecosystem Assessment Follow-on report, provide £546 million in production and cultural value in England alone.

15. Garden cities. The Woodland Trust believes that woods and trees belong at the heart of a recovery for all. New housing developments should incorporate treed green space and the Government’s proposed Garden Cities, (a concept supported by 74% of the population according to a June 2014 poll [1] ), should incorporate ambitious new canopy cover targets. Unfortunately, the Bill misses the opportunity to positively shape the future of housing in this way. The planning focus of the Bill is on the speed of the decision making process rather than the quality of the decisions being made, with no mention of the natural environment and the people who will live in and adjacent to new housing developments. The Bill should take the opportunity to legislate for high quality new communities rich in trees and open space for the long term benefit of both residents and nature and to help our society become more resilient to climate change. .


16. Much of the debate regarding energy and the Bill has centred around fracking. While the Woodland Trust does not currently take a position on the desirability or otherwise of fracking per se, we remain vigilant as to its potential to threaten ancient woodland on a case-by-case basis in the same way any other application for development might. The significant biodiversity and cultural value of ancient woodland has accumulated over very long time periods. Consequently, their unique combination of features – such as relatively undisturbed soils, unusually low levels of past pesticide or chemical application, and continuity of tree cover – supports communities of rare and vulnerable plants and animals that depend on the stable conditions ancient woodland provides. In addition, this continuity has also preserved important cultural heritage features such as mediaeval boundary banks, charcoal hearths, and old coppice stools that tell us how woodland was used in centuries past.

17. Ancient woodland is a sensitive and irreplaceable habitat. It is vulnerable to a range of negative impacts including changes to hydrology, chemical and nutrient deposition, as well as the more obvious physical effects on its dependant wildlife of removing trees and associated vegetation, and damage and disturbance from factors such as dust, and increased noise and light levels. We would therefore welcome inclusion in the Bill of wording to specifically exempt sites of ancient woodland from areas of land which may be licenced for fracking. A current amendment to Clause 38 (as at 11 December) tabled by the Shadow Energy Minister, Tom Greatrex, looks to introduce a presumption against the award of licences in relation to the use of deep-level land for onshore oil and gas exploration "within or under protected areas and functionally linked lands". Since the level of protection granted to ancient woodland is not currently satisfactory, in our view (Section 118 of the NPPF allows for the destruction or deterioration of ancient woodland if the benefits of a development "clearly outweigh the loss"), it may be deemed that ancient woodland does not fall under this broad definition of "protected areas" and therefore would not be covered by this proposed clause. We would prefer to see specific mention for ancient woodland, or, more realistically, for "irreplaceable habitats, such as ancient woodland" inserted into the Bill.

December 2014

Prepared 17th December 2014