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The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose? Contents

Chapter 3: The role of Natural England

Background

80.One of the key changes brought about by the passage of the NERC Act was the creation of Natural England. The new organisation began work in October 2006, with the then Chairman, Sir Martin Doughty, stating that:

“The creation of Natural England is a landmark moment for the natural environment. No other organisation in Europe matches the breadth of our legislative remit, and the scale of our challenge”.69

81.As stated in Chapter 1 of this report, section 2 of the NERC Act gave the following general purpose to NE:

“To ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development”.

Section 2(2) stated that the general purpose included the following objectives:

“a) Promoting nature conservation and protecting biodiversity,

b) Conserving and enhancing the landscape,

c) Securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment,

d) Promoting access to the countryside and open spaces and encouraging open-air recreation, and

e) Contributing in other ways to social and economic well-being through management of the natural environment.”

82.We received extensive evidence regarding the success, or otherwise, of NE in delivering against its general purpose and the objectives contained therein. We heard praise for flagship projects such as the English Coast Path70, but criticism of other areas of NE operation. Of particular concern to us is the ongoing decline of biodiversity (as detailed in paragraph 5) which, notwithstanding the help of many NGOs, farmers and land managers, the work of Natural England has failed to arrest or reverse, despite the priority accorded to protecting biodiversity within the general purpose of the organisation.

83.Two consistent—and connected—themes were present across much of this evidence; namely the funding and resources given to Natural England to carry out its work, and the level of independence that NE enjoyed from Defra and Government more generally. We were told that funding cuts, and increasing central control, were limiting the ability of NE to fulfil its general purpose.71 We begin by considering these overarching issues.

The funding and independence of Natural England

The role of a non-departmental public body

84.NDPBs have different roles, including those that advise ministers and others which carry out executive or regulatory functions. They work within a strategic framework set out by ministers.72 The Government defines an NDPB as being a “body which has a role in the processes of national government, but is not a government department or part of one, and which accordingly operates to a greater or lesser extent at arm’s length from ministers”.73 Cabinet Office guidance74 states that an existing public body has to meet one of the following three tests in order to remain at arm’s length from Government:

85.Accordingly, NE, as an NDPB, is intended to operate within a strategic framework defined by ministers but with a degree of detachment and independence from Government. We were told that its ability to perform this role had diminished over time.

Independence from Government

86.The Chairman of Natural England, Andrew Sells, told the Committee that there was “an inherent contradiction in being a non-departmental body when you are wholly accountable to that department for the money and the way you spend it”.75 Mr Sells explained that NE had around 500 statutory duties or responsibilities, “many of which have an appeal to the Secretary of State and some straight to the High Court”.76 In addition, NE carries out a great deal of work for Defra under contract.77

87.A good number of our witnesses believed that NE was lacking independence from Government, and that this affected its ability to deliver against its general purpose. David White suggested that NE did not have the degree of independence that was enjoyed by predecessor bodies.78 The Wildlife Trusts stated that they were “concerned by the change in Natural England’s relationship with central Government and the suspicion that its independence and its ability to speak in public has been reduced”.79 Dr Nigel Stone, former Chief Executive of Exmoor National Park Authority, went further, arguing that Natural England “have been made spineless. They have basically been put in a position in which they are not really encouraged or allowed even to provide any constructive criticism”.80

88.The RSPB identified “loss of independence” as one of a number of key barriers to effective delivery of the critical functions of NE, expressing particular concern regarding the impact of government deregulation targets and pressure placed upon NE to reduce its regulatory oversight.81 They went on to suggest that there were structural weaknesses that compromised the independence of NE:

“NE was intended to be an independent champion for wildlife; however the structures under which it was established restrict its independence. The agency is reliant on government for its funding and reports to government rather than parliament, this already raises the potential for NE to be influenced by political priorities”.82

89.The Chairman of NE, when asked what one recommendation he would like to see this Committee make, told us: “I would like us to have a little more freedom to do what we think we should do and be allowed to get on with it”.83 We support this point of view.

90.The creation of the ‘gov.uk’ website in 2012, and the loss of a distinct online presence—in addition to the loss of its own press office—were seen as further compromising the autonomy of NE. While information about the work and operations of Natural England is still readily accessible online, this information is now contained within the wider Defra and gov.uk platforms. The Open Spaces Society argued that:

“Natural England has regrettably been sucked into Defra. It no longer has its own website, nor does it issue its own press releases. It has no independent voice as the government’s adviser and champion on wildlife. We no longer hear from it beyond the odd blog … This lack of independence causes us deep concern; government needs a critical friend”.84

The Ramblers noted that, in light of this loss of a distinct presence, they were working directly with NE to seek to “amplify its message” in respect of promoting responsible access to the countryside.85

91.We put this issue to the Secretary of State, who told us that despite the loss of press, publicity and communications functions, the Board and Chairman of Natural England were well equipped to ensure the independence of NE:

“The chairman of Natural England needs no PR department to get his view across—his voice is heard loud and clear. One of the things we have had to do is try to make sure that, across the Defra family, individual silos of activity that form the corporate services functions—PR, accounts and personnel—can be brought together. Ultimately, Natural England’s board is robust and independent. Its chairman is both of those in spades”.86

92.Notwithstanding this assurance, we share some of the concerns that have been put to us. The independence of Natural England should be safeguarded through its strategic framework, structures and resources, rather than through the capacity and personality of individuals who work within this framework. While the current Chairman is well placed to ensure the appropriate degree of independence, it cannot be assumed that this will always hold true for his successors.

93.In seeking to ensure that the natural environment is “conserved, enhanced and managed for the benefit of present and future generations” Natural England will sometimes be required to challenge the work of other public bodies and Government departments. At a time of almost unprecedented demand for housebuilding and development, it is essential that the natural environment has a strong, robust and independent champion, able to speak truth to power. We note that other NDPBs sponsored by Defra, including the Environment Agency, have retained their own press office, and believe that Natural England should be similarly well equipped.

94.Non-departmental public bodies, while playing a part in the processes of national government, should operate at arm’s length from Ministers and departments. We share the concerns of witnesses who have told us that Natural England no longer has a distinctive voice. We urge the Government to recognise these concerns, and to take steps to enable Natural England to operate with the appropriate degree of independence.

95.As a minimum requirement, we recommend that the Government should allow Natural England to re-establish its own, independent, press and communications function.

Funding and resources

96.The question of independence cannot be divorced from that of resources. We repeatedly heard that NE had been forced to narrow its focus in recent years as a result of ongoing budget cuts, and that this was having a detrimental effect on its ability to fulfil its general purpose.

97.Natural England’s budget for 2017/18 is £112 million, of which £90 million is pay related.87 This compares with an overall budget of over £200 million in 2006/07, suggesting a budget cut of over 44% in an 11-year period.88 Alan Law, Chief Strategy Officer at NE, told us that in seeking to manage “a very significant reduction” in funding NE had:

“…gone through a series of steps to make savings along the way that do not impact on outcomes. We have consolidated our back-office functions into the core department, we have cut our number of offices and, as we have shrunk, we have moved a greater proportion of our staff on to front-line services, but you can do that for only so long”.89

98.The steps taken to manage these budget cuts—particularly the emphasis placed upon increasing the proportion of staff in front-line services—are commendable. We received extensive evidence, however, highlighting concerns about the impact of these cuts upon the day-to-day operation of NE.90

99.This evidence consistently suggested a retreat from non-statutory or non-binding areas of work and an increased focus on core regulatory functions, to the detriment of the wider natural environment. The Open Spaces Society told us that there was:

“A fundamental tension between undertaking its regulatory function and fulfilling its general purposes as laid down in the Natural Environment and Rural Communities Act 2006. Limited resources are increasingly being re-directed to the former, leaving its wider functions wanting”.91

Cranborne Chase AONB suggested that “wildlife” staff appeared to have been retained at NE at the expense of those working in other areas of operation, particularly landscape professionals.92 Norfolk County Council offered a similar assessment, noting that NE could provide planning consultation responses on biodiversity matters, but was not properly fulfilling its role as a statutory consultee on landscape issues.93

100.A number of other witnesses told us that funding cuts had had an effect upon biodiversity and wildlife functions too. Ove Arup and Partners Ltd argued that NE has appropriate powers to perform its functions, but as a result of “poor decision making” by previous governments, “cost cutting has ensured that Natural England has nowhere near the resources required to perform its functions”.94 They went on to note that NE generally only offered detailed comments on planning applications when “higher value resources” such as SSSIs or European protected sites were likely to be affected.95 Lincolnshire Wildlife Trust highlighted the same trend, and suggested that this was at odds with the principles set out by the Lawton Review.96

101.The vision set out by the Lawton Review was one of landscape-scale conservation delivered through the concept of “more, bigger, better, joined” sites.97 The Wildlife Trusts and Lincolnshire Wildlife Trust, however, argued that budgetary cuts were making it impossible for NE to deliver on the wider Lawton agenda.98 We note that the recently published 25-year environment plan promises the development of a Nature Recovery Network to deliver on the recommendations from Professor Lawton99; appropriate resources must be devoted to this work.

102.ALGE suggested that NE did not have sufficient resources to perform its roles as adviser, statutory consultee and licensing organisation, resulting in “delays, criticism of services and, ultimately, a loss of confidence in the way in which it is executing its duties”.100 The UK Environmental Law Association highlighted occasions when the “diminished organisation” had been unable to meet operational demand for services such as species protection and licensing.101

103.Concerns regarding the impact of funding cuts, and the diminishing nature of the influence wielded by Natural England, were well summarised by the Landscape Institute (LI):

“The LI considers that, in terms of collaborating with other agencies that direct national policy, Natural England has insufficient authority and inadequate resources to deliver the very wide range of integrated environmental benefits that its purposes require. It has annually lost scientific expertise and funding to the extent that it has become unable or unwilling to formulate national policies to secure the conservation and enhancement of the landscape … In particular, it has been unable to secure and safeguard a coherent ecological network to overcome the damaging fragmentation of habitats across the whole country … the status of Natural England has been incrementally diminished, so that it struggles to impose essential constraints on developments that will inevitably give rise to environmental damage. We fear it has less and less influence on its partners … despite the promises of the current and preceding governments to be the first generation to leave the environment in a better state than they found it”.102

104.Natural England should champion England’s natural environment, and must have the authority, resources and capacity to deliver its general purpose, while working alongside farmers, landowners and NGOs. Successive reductions to its budget, however, have limited its ability to perform key functions, and reduced its wider influence.

105.All of the objectives contained within the general purpose of Natural England are important; these functions were also important elements of the work of predecessor bodies to Natural England. Funding limitations have led to an increased focus on core regulatory functions and will, ultimately, lead to Natural England becoming unable to fulfil its general purpose. The Government must take steps to resolve this situation, particularly in light of the changes to environmental protection and management that will be brought about as a result of our departure from the European Union. We recommend that Natural England should be funded to a level commensurate with the delivery of its full range of statutory duties and responsibilities. This situation should be addressed as a matter of urgency.

106.We note that the recently published 25-year environment plan promises the development of a Nature Recovery Network to deliver on recommendations from the Lawton Review. The Government must ensure that appropriate resources are devoted to this work.

Moving from a regulatory to a collaborative approach

107.Following publication of the Lawton Review 12 Nature Improvement Areas (NIAs) were established to create joined-up and resilient ecological networks at a landscape scale. The NIAs are run by partnerships of local authorities, local communities with landowners, the private sector and conservation organisations. In light of the success and lessons learned from these projects, Natural England’s Conservation Strategy, Conservation 21, was published in 2016. It notes that nature conservation has “achieved much” over the past 60 years, including the development of a “vast body of knowledge about habitats, species and landscapes”, the development of a comprehensive legislative framework for environmental protection, and the development of incentives to support the management of certain areas.103

108.Nevertheless, it notes that there is much more to do, and that “research shows that wildlife continues to decline and landscapes continue to be degraded”. The strategy reflects upon the need for a balanced approach to protection of species, and notes that the decline results in part from “an insular approach to conservation—one based foremost on protection, and on conservation being separate to rather than integrated with other land uses”.104 As a result, it states that “we need a new approach—a more useful way of looking at our relationship with nature … delivering better long term outcomes for the environment by understanding people’s interests and needs, and working towards a shared vision”.105

109.The strategy implies that, while regulation may play a role in the protection of the natural environment, its objectives can only be achieved by persuasion and collaboration. It states that

“we know we can’t achieve our ambition by simply imposing and policing rules and regulations. We have to inspire people to create change—helping people recognise the relevance of the natural environment to their day to day lives and the choices they make, and inspiring them to be more imaginative and ambitious for the natural world around them”.106

110.This intention was confirmed in oral evidence from representatives of NE. Alan Law stated that:

“Conservation 21 is an attempt to say that if we still aim, as we must, to deliver our full purpose … we need to do it in a different way. It needs to involve greater reliance on partnerships and working with others and operating one-to-many and at a landscape scale rather than seeking to do one-to-one delivery on the ground across the piece”.107

111.The strategy, and its apparent intention to move away from a focus on direct regulation, met with a mixed response. The Natural Environment Research Council told us that the publication of the strategy is to be welcomed “as a tool for engagement and stimulating innovative solutions to environmental problems”.108 The Country Land and Business Association (CLA) suggested that in recent years NE “has got much more receptive to the needs of farmers and other rural land managers. It is taking a long time, but it takes a long time for these things to change”.109

112.By contrast, ALGE argued that, “although Natural England have published their strategy Conservation 21, our members are not clear on specifically what work is being taken forward or how they may engage with it”.110 Similarly, the Open Spaces Society stated that “while we are delighted that … Conservation 21 has as one of its three guiding principles ‘putting people at the heart of the environment’, we have seen no evidence of how this is being achieved”.111

113.We heard concerns that the strategy signalled a move away from regulatory enforcement:

“NE has failed to use its enforcement powers to secure compliance where landowners persistently do not secure positive management … Conservation 21 signals a further reduction in the use of their regulatory powers in favour of voluntary approaches, which are frequently less effective at delivering results”.112

114.Chris Corrigan, Director of RSPB England elaborated on this point, telling us that it was important to have “the ability and preparedness to use that regulatory stick. For us, an independent regulator is an important part of the conservation toolkit … of course, we want that collaboration … but you have to have the stick to back that up when that approach fails”.113 This view was echoed by The Wildlife Trusts, who argued that Conservation 21 signalled a move away from the compliance and enforcement role that only a statutory body can deliver.114

115.Alan Law of NE told us that “our role is very much to identify where there are opportunities to restore and enhance the environment, and to engage with business, local communities and landowners to achieve those aims, rather than identifying where there has been a problem and seeking to apply regulation to remedy it”.115 He denied, however, that Natural England was abandoning regulation altogether:

“I would challenge those who have made the statement about a lack of regulation to give examples of where that lack of regulation is borne out, because I have seen very few specifics referenced. We have regulatory powers and we use them to object in the planning system and to designate sites”.116

116.When questioned about the balance between its statutory regulatory duties and its relational approach, Mr Law told us that “this question implies that it is a choice between one and the other—that you have to regulate or you engage in relationship work. It is more how you go about doing that … that does not mean to say that you do not do the regulation; it is about how you do the regulation”. He cited as an example the changed approach to great crested newts, which had previously been the subject of a strict licensing procedure which was ineffectual and difficult to administer. Mr Law added that a licensing regime continued but it was done “at a landscape scale and a plan scale with the local authority” involving upfront planning of habitat provision.117

117.The development of partnerships and new, collaborative ways of working will be essential to delivering the strategy set out in Conservation 21. Natural England should continue to work effectively with stakeholders, incentivising and inspiring them towards positive action that will enhance our natural environment. This should complement, rather than diminish, the important regulatory backdrop that underpins the work of Natural England.

118.We recommend that in reviewing its strategy and operations, Natural England should consider how to maintain an effective balance between its core functions of regulation and collaboration, and that the latter continues to be effectively backed up by the former when necessary.

Input into the development planning process

119.Section 4(1) of the NERC Act 2006 requires that: “Natural England must, at the request of a public authority, give advice to that authority on any matter relating to Natural England’s general purpose”.118 Section 4 (4) goes on to state: “Natural England may give advice to any person on any matter relating to its general purpose - (a) at the request of that person, or (b) if Natural England thinks it appropriate to do so, on its own initiative”.119

120.Natural England is responsible for a range of mandatory and voluntary planning functions relating to the impact of development on the environment. It is a consultee on most local and neighbourhood plans, and on many planning applications. Among others, grounds for consulting NE on local and neighbourhood plans include if a sustainability appraisal or strategic environmental assessment is required; if it affects protected sites and areas, or the best and most versatile agricultural land; and if it affects protected species.120

121.Grounds for consulting on planning applications are similar, including if an application requires an Environmental Impact Assessment; if it will result in the loss of over 20 hectares of the best and most versatile agricultural land; if it is in or is likely to affect a SSSI; or if it reclaims to agricultural use land that was previously used for mining or waste management.121

122.Developers may seek pre-application advice from Natural England, though this is not mandatory except in the case of nationally significant infrastructure projects.122 Similarly to the advice for local planning authorities, NE recommends that developers seek advice if a proposal is likely to affect protected sites and areas, protected species, and the best and most versatile agricultural land or ancient woodland. It also recommends that developers seek advice where the development may include environmental opportunities that could be achieved as ‘green infrastructure’, and biodiversity improvements of the site and surrounding area.123

123.A number of submissions and witnesses noted that NE had insufficient resources to perform its statutory and advisory functions in relation to the planning system. The Wildlife Trusts stated that “in our view, reductions in resourcing levels have undoubtedly had a critical impact on Natural England’s performance and capability to achieve its statutory functions”.124 Wildlife and Countryside Link stated that “based on recent assessments, Natural England has struggled to fulfil its mandate … due to these cuts Natural England does not have the resources or sufficient numbers of suitably skilled and experienced staff to perform its functions fully and effectively”.125

124.NE publishes standard advice on how local authorities should review planning applications affecting protected species or protected sites and areas. We heard evidence from a number of organisations that NE had a tendency only to provide bespoke advice on planning applications where a European or domestic protected area, or a protected species, was likely to be affected.126

125.Sheffield City Council stated that “there is too much reliance on standing advice, which is open to interpretation. Clarification is often sought from NE on points made in the standing advice”.127 ALGE echoed this view, stating that the reliance on standing advice “does not give ALGE confidence that Natural England’s planning function is being properly met”.128 It also noted that the advice was becoming outdated, a point supported by Cotswold District Council, which noted as an example that existing standing advice conflicted with the new European protected species licensing policy.129

126.We also heard evidence that as NE’s role in advising and commenting on planning applications had diminished, local authorities were effectively taking on additional responsibilities which they did not have the resources or expertise to handle. ALGE told us that “lack of capacity and resources at Natural England often means that others are having to fill the gap—either local authority officers or officers from other statutory agencies—as there is still the need for this expertise”.

127.ALGE went on to add that local authorities had often depended on the Environment Agency for advice on issues such as protected species or land management issues, “when in truth these should be the prime responsibility of NE to respond, intervene, investigate and resolve”.130 The County Councils Network drew attention to the significant reductions in funding of local authorities and stated that “the question of resource must be addressed to ensure that the environment receives sufficient protection”.131

128.Problems were also highlighted whereby Natural England was still viewed as the senior advisory authority when in practice decisions were being referred to other bodies. The Landscape Institute told us that “issues exist where Natural England raises no objections in response to development proposals for sites within an AONB. Even in cases where the applicant is referred to consult the relevant AONB (which is agreed protocol), applicants see Natural England as the senior authority and follow their decision”.132

129.Defra told us that NE had consistently responded to over 12,800 planning application consultations over the last three years, and that 97% of these in 2016–17 were responded to within the agreed timeframe. They also noted, however, that this number included “no comment” and “no further comment” responses, and that since autumn 2013 NE had employed standing advice for protected species, and most responses would refer to this standing advice.133

130.Elaborating on this subject, Alan Law stated that:

“We have always delivered more “no comment” or general responses than we have bespoke advice … We try to filter out the “no comments”, then filter out those which are generic and can be picked up through generic advice, and then focus our time and effort on where there is the greatest added value and benefit from our providing a bespoke response … we are trying to keep the amount of bespoke advice that we issue as constant as we can.

We are also trying … to get more engaged in the strategic planning up front and reduce the number of planning applications further on down the line which may be at odds with the environment”.134

131.Relatedly, the Landscape Institute expressed concern that NE did not pay due regard to the landscape impact of development, even in the case of nationally important protected landscapes. It noted that it had seen advice issued which referred such matters back to local authorities or staff at the relevant National Park Authority, and that “this becomes even more of an issue because at the same time the skills associated with the landscape have largely been lost from local government”.135 A 2011 survey suggested that over 50% of landscape roles in the public sector had been lost in the previous 15 years.136

132.Norfolk County Council echoed this point, stating that Natural England “does not adequately represent its landscape role within the planning process. Instead, it comments on biodiversity and refers applications to the AONB team for comments on landscape, using a standardised letter. However, NE is the statutory consultee so our opinion can be seen to carry less weight than NE”. They went on to add that if Natural England registers no objection to the impacts of development on biodiversity, this is usually taken as its approval of all aspects of the application, including landscape aspects.137

133.Alan Law acknowledged that the organisation had faced resource challenges in relation to landscape advice, but not that it had reduced its focus:

“I do not think we have reduced our focus on landscape. We have less resource across the breadth of our remit, so there are fewer people in biodiversity and in landscape or access, so they are all affected … the combination of reductions within local government and within delivery bodies is a challenging one, but I do not think that is unique to landscape”.138

134.We note that the Government’s 25-year environment plan provides an undertaking to conserve and enhance the natural beauty of our landscapes by reviewing National Parks and AONBs, including reviewing whether more designations are required in future. We welcome this review in the context of our evidence suggesting that landscape is a relatively low priority with limited resources in NE and planning authorities.

135.We are persuaded by the evidence that the quality of planning advice issued by Natural England has declined, largely as a result of resource constraints. While application response rates continue to be impressive, there appears to be an increasing reliance on standard advice which in some cases may itself not be up to date.

136.The reduction of Natural England’s role has left a vacuum which in many cases local authorities have been required to fill, without the adequate resources or expertise to do so. As Natural England has withdrawn, there has been little clarity as to the changing scope of its role or the expectations on local authorities. In the light of mutual resource pressures, Natural England should be clearer as to when it will play an active part in planning policy and decision-making, and when it will refer to other bodies. There should also be a renewed dialogue between Natural England, the Local Government Association and local authorities more generally as to the most effective role that NE can play in the planning process.

137.We recommend that Natural England reviews its standard advice to planning authorities to ensure that it is up to date, and reviews it more regularly in future. We also recommend that Natural England reviews the extent of its reference to standard advice when considering planning applications.

138.We also noted the evidence that Natural England has insufficient regard for landscapes when offering planning advice, though we accept its evidence that the issue may be one of resource constraints rather than of losing a focus on landscape specifically. Nevertheless, with local government facing similar constraints, there is clearly a need for a body such as Natural England to retain and review its focus.

139.Natural England should review its approach to considering landscapes when offering planning advice and considering planning applications, and consider if there is more it can do in this respect, particularly in light of the wider loss of expertise in landscape matters across the public sector.

140.Additionally, the Government’s review of National Parks and Areas of Outstanding Natural Beauty, anticipated in the 25-year environment plan, should give due emphasis to the importance of the planning system in protecting landscapes.

Net gain

141.We heard evidence that the planning system should be used to deliver “net gain” in biodiversity in new developments—in other words that development leaves local biodiversity in an improved state overall. The Landscape Institute criticised national planning policy for failing to place sufficient emphasis on biodiversity net gain, stating that it is only referenced in passing in the current version of the National Planning Policy Framework (NPPF) with a stipulation that sustainable investment must involve “moving from a net loss of biodiversity to achieving net gains for nature”.139

142.Natural England noted in written evidence to the Committee that there are biodiversity net gain good practice principles for local authorities and developers, and UK guidance on net gain is currently being developed jointly by a number of professional bodies.140 It added that “strengthening biodiversity duties, and related land use planning guidance, could aid the implementation of that approach”.141

143.Ove Arup and Partners Ltd told us that, despite the requirement for net gain in the NPPF, “there has been little response to this requirement by Local Planning Authorities even in those producing updated Local Plans, which suggests that there is a lack of understanding of the terms, i.e. a lack of capacity within the Local Planning Authorities. Little regard is paid to … how elements such as net gain will be achieved and implemented”.142

144.In its 25-year environment plan, the Government commits to ensuring that “existing requirements for net gain for biodiversity in national planning policy are strengthened, including consulting on whether they should be mandated alongside any exemptions that may be necessary”. It adds that “our immediate ambition is to work in partnership with other Government bodies, local planning authorities and developers to mainstream the use of existing biodiversity net gain approaches within the planning system, update the tools that underpin them and reduce process costs on developers”.143

145.On 6 March 2018 the Government published a revised draft of the NPPF for consultation. The draft includes a new stipulation that local plans should “identify and pursue opportunities for securing measurable net gains for biodiversity”. If adopted, this would be the first time that local authorities have been required to make specific provision for biodiversity net gain in local plans.144

146.The draft also strengthens the requirement to refuse development which would result in the loss or deterioration of irreplaceable habitats. The current version states that such development should be refused “unless the need for, and benefits of, the development in that location clearly outweigh the loss”145 whereas the draft revised version states that it should be refused “unless there are wholly exceptional reasons, and a suitable mitigation strategy exists”.146

147.In addition, CIRIA, IEMA and CIEEM147 have developed best practice principles for how UK industry can help deliver biodiversity net gain outcomes. These principles will be used to produce practical guidance for industry on delivering biodiversity net gain.148

148.We did not receive substantive evidence on the potential problems and practical issues that may need to be addressed in relation to strengthened net gain requirements including, for example, the question of environmental goods which are impossible to substitute, and the other protections which may be necessary in this regard. We trust that these issues will be addressed through the consultation, and welcome the strengthened requirement in the draft revised NPPF to refuse development resulting in the loss of irreplaceable habitats unless there are exceptional circumstances.

149.We welcome the forthcoming consultation on strengthening requirements for biodiversity net gain in the planning system, as well as the forthcoming industry guidance. We would encourage the Government and Natural England to consider other measures in policy and guidance which would support net gain and associated environmental protection measures, taking into account the need for such measures to be practically deliverable and the fact that some environmental goods are not substitutable.

The discretionary advice service

150.NE has sought in recent years to address its diminishing resources by introducing a wider number of chargeable services, including pre-application advice services for developers. Alan Law explained that:

“Until five years ago, Natural England did not have the facility to charge, so we secured a facility to offer a range of discretionary advice services … the benefit for the private sector is that it gets our advice early, before it has come to the point of firming up some of its investment plans. The benefit for us is that by providing that advice early on a full cost recovery basis we can save ourselves subsequent statutory advice time”.149

151.In a subsequent evidence session, Mr Law also stated that the service generates between £3 million and £4 million of income for Natural England each year.150 NE told us that it is also “using other external funding sources to help improve the natural environment in a challenging context for Government funding. The NERC Act powers have helped Natural England develop its new approach to charging for discretionary advice services”.151

152.Elaborating on this point, we heard that NE plans to develop its charging base in future, for example for a wider range of activities on land it manages or for statutory services.152 We also heard some concern about the expansion of Natural England’s chargeable services, however. Lincolnshire Wildlife Trust stated:

“The principle of engaging early with developers to get the development right from the outset is a sound one, and Natural England should do this, but it should not be constrained by charging if it is the right thing to do for the natural environment and nor should it be at the expense of responding to wider forward and development control planning to ensure biodiversity is taken into account”.153

153.The Bat Conservation Trust also expressed concern, stating that it had heard from staff that resources may be increasingly orientated towards work where there is a financial incentive rather than a conservation concern.154 The RSPB noted that NE was rapidly increasing its commercial income and hoped to increase it to £12 million per year by 2020. It stated that “whilst we recognise the desire to supplement reductions in grant in aid funding, paid consultancy work must not be allowed to distract from their core function”.155

154.Natural England told us that they could benefit from amendments to the NERC Act which would enable them to widen their charging activities. They stated that “the definition of services (which we can charge for) in section 11 is potentially limiting given the wider range of activities we might pursue and get income for, consistent with our general purpose. It is now Treasury policy that charging schemes should be introduced by way of a Statutory Instrument; however the NERC Act does not contain broad, general powers for Statutory Instruments to be created for this purpose”.156

155.We welcome the fact that Natural England has found means to generate income by the provision of planning advice, though its focus must continue to be on improving the process rather than generating revenue as a first priority. While Natural England discloses its income from discretionary advice in its national accounts, we believe further transparency would be welcome with regard to the uses it makes of its commercial income, perhaps through a separate declaration.

156.Additionally, the NERC Act itself appears to limit the scope of Natural England’s discretionary charging services. The Government should consider how these rules are applied to Natural England and whether they may unnecessarily limit the scope and potential of its discretionary activities.

157.Natural England should consider carefully how it balances its resources between statutory, advisory and chargeable activities, and how it ensures avoidance of conflict of interest between its roles as paid advisor and statutory consultee.

Access to the countryside

158.One element of the general purpose of NE, as described in paragraph 18, is to promote access to the countryside and open spaces, and to encourage open-air recreation. The work and role of Natural England in this context builds upon the Countryside and Rights of Way Act 2000 (the CRoW Act), which revolutionised access to the countryside and, since implementation, has led to marked improvements to public access. The CRoW Act provided a new right of public access to areas of open land comprising mountain, moor, heath, down, and registered common land. It also provided safeguards intended to take into account the needs of landowners, occupiers and wildlife, thus seeking to address the ‘trade-offs’ that need to be made when promoting access.

Capital investment and maintenance of routes

159.The public access work of Natural England has, in recent years, focused upon national projects, notably delivery of the England Coast Path, which is a key project. This project will create a walking route around the whole English coast, alongside secure rights of access to beaches. We were told that 314 miles of the path are currently open; the intention is for the full 2,700-mile path to be open by 2020.157 Once opened, this will be the longest continuous coast path in the world.

160.The work undertaken by NE on this project was widely praised in the evidence that we received.158 North Yorkshire County Council stated that the coastal path project was a “great example of how Natural England can promote better access for public good”159 while Wildlife and Countryside Link noted that this work “indicates that where a project is properly resourced Natural England is able to deliver it”.160

161.We were told, however, that funding had only been allocated by Defra for creation of the English Coast Path, and not for its long-term maintenance.161 A wider, related issue concerned long-term funding for the maintenance of the 13 National Trails in England.162 NE had reduced funding for National Trails by 30% since 2012, and a three-year funding deal agreed in 2013 had not been renewed in 2016. Defra had provided funding for the 2017/18 financial year but, beyond this, the financial sustainability of National Trails was problematic.163

162.We were told that 83 million people visit the National Trails each year, and that visitor spending is worth an estimated £533 million per year to the economy.164 Maintenance of the Trails is therefore important. NE acknowledged that their funding of this work had reduced in recent years, and that a sustainable future model was needed:

“Our work on access, like much of our remit, we have had to contract as budgets have gone down … We spend in the order of £1.8 million a year on maintenance of the existing access infrastructure, but we spend more on the development of the new England coastal path, which is the big flagship piece. We need to help the bodies that we work with on the ground in terms of maintaining existing infrastructure to move to a slightly different model. Those existing national trails are prime for sponsorship, and a model that is dependent simply on central government funding paying for that maintenance on the ground does not look sustainable in the current climate, so we need to work with those partnerships to get them into a different funding model”.165

The Ramblers also acknowledged the need for a sustainable long-term funding model, and expressed an interest in being part of this solution.166

163.We note the concerns that have been expressed regarding the long-term funding and sustainability of the National Trails network. We recommend that Natural England and Defra work with the Ramblers, representatives of the tourism industry, and other appropriate interest groups, to develop proposals for long-term management and maintenance funding. This work should give due consideration to the potential for sponsorship of the Trails and, more widely, should consider the role that active partnerships of different interests could play in maintaining national and local routes.

164.The issue of long-term maintenance of public access routes expands more broadly than the 13 National Trails. The Secretary of State has signalled his intention to develop a new approach to environmental land management payments following Brexit and departure from the Common Agricultural Policy (CAP).167 This new approach to farm payments will be focused upon providing public money for public goods, as the Secretary of State explained:

“I believe that the principal public good to which public money should be devoted is environmental enhancement. I also think that public access, properly designed, is another real good, because the broader the understanding of rural life, food production and agriculture is among all our citizens, the more effectively rural-proofing will take place at national level in the political conversation”.168

165.In February the Government published a consultation paper setting out these proposals in more detail.169 This identifies public access as one of a number of public goods that could be delivered as part of the new arrangements:

“We will replace the Common Agricultural Policy with a new system which pays public money for public goods. A new environmental land management system will be the cornerstone of our agricultural and land management policy. We will support farmers and land managers to deliver substantial environmental improvements, securing public and business benefits from the farmed environment. Other public goods we could support include animal welfare, promoting agricultural productivity, public access, and supporting rural and upland resilience”.170

The paper goes on to note that a forthcoming Agriculture Bill could include legislative provisions to create new schemes for supporting public access.171 The consultation closes in May 2018.

166.Our witnesses were also of the view that any new system of farm or environmental payments should give a degree of priority to public access and maintenance of routes. A number of Local Access Forums argued that Brexit presented an opportunity for public access to be reinstated into national agri-environment schemes; Norfolk Local Access Forum suggested that post-Brexit funding should provide for investment and maintenance of existing rights of way.172

167.The Government is consulting upon a new system of farm and environmental payments to be applied following the withdrawal of the UK from the EU and the cessation of Common Agricultural Policy payments. We recommend that the Government should include payments for maintenance and enhancement of public access within this new system of public funding, although we note that this could have implications for food production and the natural environment.

The promotion of public access

168.In addition to the infrastructure issues set out above, we heard criticism of the part NE plays in promoting public access to the countryside. We note, in this context, that the 25-year environment plan attaches some importance to the need to connect people with the environment, while also stating that, currently, “the number of people who spend little or no time in natural spaces is too high”.173

169.We were told that NE was dominated by conservation and biodiversity issues, to the detriment of promoting access.174 The Gloucestershire Local Access Forum suggested that the support provided by Natural England to local access forums had reduced significantly in recent years; similar arguments were made by the Norfolk Local Access Forum and the Broads Local Access Forum, who suggested that this was part of a shift towards fewer resources being allocated to the management of access to the countryside across Government as a whole.175 The Mid & West Berks Access Forum echoed this view, but went further, suggesting that public access “perhaps … needs to be transferred to a public access department within Defra, to the Department of Transport or even a new body”.176

170.Norfolk County Council argued that NE does not have the resources for promotional work, and instead sees its role as being to “enable” access.177 The Ramblers told us that the prime area where resources had been reduced in recent years was for promotional activity in relation to responsible access in the countryside.178 This view was echoed by the NFU, who argued that the Countryside Code (originally produced by the Countryside Agency) needed to be revised, updated and properly promoted:

“It is essential that NE do more to promote how the general public can responsibly enjoy the countryside. In recent years NE and other bodies have done less to promote responsible use of the countryside, but we believe that this trend should be reversed and more should be done. We would advocate that NE promotes responsible use of the countryside by revising and re-launching the Countryside Code and other guidance on responsible use”.179

171.We believe that these criticisms are, in part, a result of some of the issues discussed earlier in this Chapter. Diminishing amounts of funding, combined with a reduced capacity for publicity and awareness raising, has limited the part that Natural England can play in delivering against their responsibilities for promoting public access to the countryside. This situation needs to be addressed.

172.It is important to note that public access, which is to be welcomed for many reasons, needs to be balanced against the needs and demands of farming practices, wildlife, natural habitats and biodiversity. Rotherham Metropolitan Borough Council told us that “Many sites, species and habitats are sensitive and so public access may need to be restricted or reduced and this should be recognised. There are plenty of sites that can sustain higher visitor pressure but these are typically less sensitive sites such as public parks and country parks”.180

173.This point of view was partly echoed by The Wildlife Trusts, which stated that arrangements for enabling access to the countryside “remain generally appropriate” but that they had some concerns about the approach Natural England had taken to introducing coastal access under the Marine and Coastal Access Act 2009. It stated that “whilst we welcome and strongly support the principle of opening new public access to our coasts, there are concerns that proposals for some coastal habitats risk causing unsustainable levels of recreational disturbance to some highly sensitive sites and species”.181

174.The general purpose of Natural England, set out in the Natural Environment and Rural Communities Act 2006, includes responsibility for promoting access to the countryside. This element of the general purpose is not, at present, being delivered effectively. We believe that Natural England should have sufficient resources to deliver against all elements of its general purpose. It must also have the capacity to undertake effective promotional work and awareness raising activity.

175.Our earlier recommendations seek to increase the funding, independence and capacity of Natural England. Public access to the countryside would benefit from enactment of these recommendations, and should be appropriately prioritised by Natural England following their implementation, with due regard for the protection and management of sensitive wildlife sites.

176.As part of this proactive, balanced and responsible approach to promoting public access we also recommend that Natural England should revise and relaunch the Countryside Code.

The long-term future of Natural England

177.The Triennial Review commissioned by Defra in 2013 (see Chapter One) concluded that, on balance, the Environment Agency and Natural England should be retained as separate organisations. Since 2013, however, the context within which both of these agencies work has changed considerably, and will change still further as a result of Brexit. New approaches and ways of working will also be required to deliver upon the ambitious agenda contained within the 25-year environment plan.

178.Professor Dieter Helm CBE, Chairman of the Natural Capital Committee, suggested that a re-structuring of organisations operating in this field should take place. Professor Helm argued that the functions of the Environment Agency should be broken up, with a small Environmental Protection Agency retained to enforce environmental protection and pollution laws. Remaining (non-flooding) functions, coupled with much of the work currently undertaken by NE, would then be subsumed into a new body, established on a statutory basis, tasked with delivering the 25-year environment plan.182

179.We put the case for structural change to the Secretary of State, who acknowledged the potential rationale for such a course of action, but felt that it was not appropriate at the present time:

“He [Professor Helm] makes an impeccable intellectual case for having an environmental protection agency—a revamped Environment Agency—and for some of the delivery functions with respect to water and flood prevention being taken on by water companies and others. There is only so much that even the best government departments can do at one time. This is a responsibility for Ministers who will come after [Lord Gardiner of Kimble] and me to address. We want it, but we have a lot on our plates at the moment. It means that that sort of restructuring is for a future day, rather than for the near horizon”.183

180.We agree with the Secretary of State. We believe that there is a longer-term case for examining the fitness for purpose of Natural England, the Environment Agency and, additionally, the Rural Payments Agency, given the anticipated changes to farm payments.

181.Natural England’s role will change following the departure of the UK from the European Union. These changes will also have an impact upon the work of the Environment Agency and the Rural Payments Agency as, indeed, will the implementation of the 25-year environment plan. Accordingly, we recommend that Defra should commit to a longer-term review of the distinct functions, responsibilities and purposes of these bodies, and an examination of the case for any restructuring or rearrangement to deliver against new priorities.


69 ‘Government agency urges us back to nature’ The Guardian (11 October 2006): https://www.theguardian.com/environment/2006/oct/11/climatechange.climatechangeenvironment1 [accessed 13 March 2018]

70 Q 27 (Nick Johannsen) and Q 34 (Harry Bowell)

71 Including evidence from: ALGE (NER0048), Norfolk CC (NER0042), Cotswold DC (NER0056), Ove Arup and Partners Ltd (NER0069), Cranborne Chase AONB (NER0071), Greater Lincolnshire Nature Partnership (NER0044), Open Space Society (NER0074), RSPB (NER0051), CIEEM (NER0030), Wildlife Trusts (NER0080), QQ 160-161 (Merrick Denton-Thompson OBE), Q 79 (Stephen Trotter), Q 173 (David Baldock), Q 25 (Nick Johannsen), Q 89 (Dr Stephanie Wray & Dr Jo Judge)

72 Cabinet Office, ‘Guidance: Public bodies’, (19 February 2013): https://www.gov.uk/guidance/public-bodies-reform#ndpbs-executive-agencies-and-non-ministerial-departments [accessed 13 March 2018]

73 Ibid.

74 Ibid.

75 Q 185 (Andrew Sells)

76 Q 185 (Andrew Sells)

77 Q 185 (Andrew Sells)

78 Written evidence from David White (NER0034)

79 Written evidence from Wildlife Trusts (NER0080)

80 Q 29 (Dr Nigel Stone)

81 Written evidence from RSPB (NER0051)

82 Ibid.

83 Q 196 (Andrew Sells)

84 Written evidence from Open Spaces Society (NER0074)

85 Q 151 (Alison Hallas)

86 Q 202 (Michael Gove MP)

87 Supplementary written evidence from Natural England (NER0092). Budget figure as at May 2017.

88 Supplementary written evidence from Natural England (NER0092). Natural England told us that this was “as near a like to like basis as we can track”.

89 Q 190 (Alan Law)

90 Including written evidence from: Association of Local Environmental Records Centres (NER0066); Bat Conservation Trust (NER0061); British Ecological Society (NER0068); Dorset Local Nature Partnership (NER0059) and The Wildlife Trusts (NER0080)

91 Written evidence from Open Spaces Society (NER0074)

92 Written evidence from Cranbrone Chase AONB (NER0071)

93 Written evidence from Norfolk County Council (NER0042). We consider the role of Natural England as a planning consultee in more detail later in this chapter.

94 Written evidence from Ove Arup and Partners Ltd (NER0069)

95 Ibid.

96 Written evidence from Lincolnshire Wildlife Trust (NER0064)

97 Defra, Making Space for Nature: A review of England’s Wildlife Sites and Ecological Network (September 2010), p 66: http://webarchive.nationalarchives.gov.uk/20130402170324/http://archive.defra.gov.uk/environment/biodiversity/documents/201009space-for-nature.pdf [accessed 13 March 2018]

98 Written evidence from The Wildlife Trusts (NER0080) and Lincolnshire Wildlife Trust (NER0064)

99 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 56

100 Written evidence from ALGE (NER0048)

101 Written evidence from UK Environmental Law Association (NER0053)

102 Written evidence from Landscape Institute (NER0070)

103 Natural England, Conservation 21: Natural England’s Conservation Strategy for the 21st Century (October 2016), p 3: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/562046/conservation-21.pdf [accessed 13 March 2018]

104 Ibid.

107 Q 190 (Alan Law)

108 Written evidence from Natural Environment Research Council (NER0029)

109 Q 52 (Christopher Price)

110 Written evidence from the Association of Local Government Ecologists (NER0048)

111 Written evidence from Open Spaces Society (NER0074)

112 Written evidence from RSPB (NER0051)

113 Q 80 (Chris Corrigan)

114 Written evidence from The Wildlife Trusts (NER0080)

115 Q 4 (Alan Law)

116 Q 190 (Alan Law)

117 Q 187 (Alan Law)

118 Natural Environment and Rural Communities Act 2006, section 4

119 Ibid.

120 Defra, Guidance, Local planning authorities, transport authorities and agencies: get environmental advice on planning (29 March 2015): https://www.gov.uk/guidance/local-planning-authorities-get-environmental-advice [accessed 13 March 2018]

122 As required by the Planning Act 2008, section 42.

124 Written evidence from Wildlife Trusts (NER0080)

125 Written evidence from Wildlife and Countryside Link (NER0078)

126 This issue was raised by, inter alia, ALGE (NER0048), CIEEM (NER0030), Staffordshire County Council (NER0077), Cotswold District Council (NER0056) and Sheffield City Council (NER0054)

127 Written evidence from Sheffield City Council (NER0054)

128 Written evidence from Association of Local Government Ecologists (NER0048)

129 Written evidence from Cotswold District Council (NER0056)

130 Written evidence from Association of Local Government Ecologists (NER0048)

131 Written evidence from County Councils Network (NER0086)

132 Written evidence from Landscape Institute (NER0070)

133 Written evidence from Defra (NER0025)

134 Q 192 (Alan Law)

135 Written evidence from the Landscape Institute (NER0070)

136 Ibid.

137 Written evidence from Norfolk County Council (NER0042)

138 Q 193 (Alan Law)

139 Written evidence from Landscape Institute (NER0070)

140 Written evidence from Natural England (NER0082)

141 Ibid.

142 Written evidence from Ove Arup and Partners Ltd (NER0069)

143 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), pp 33–34

144 HM Government, National Planning Policy Framework: draft text for consultation (6 March 2018), p 49: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/685289/Draft_revised_National_Planning_Policy_Framework.pdf [accessed 13 March 2018]

146 HM Government, National Planning Policy Framework: draft text for consultation (6 March 2018), pp 49–50

147 Construction Industry Research and Information Association, Institute of Environmental Management & Assessment; Chartered Institute of Ecology and Environmental Management.

148 CIEEM, ‘Biodiversity Net Gain - Principles and Guidance for UK Construction and Developments’: https://www.cieem.net/biodiversity-net-gain-principles-and-guidance-for-uk-construction-and-developments [accessed 13 March 2018]

149 Q 5 (Alan Law)

150 Q 192 (Alan Law)

151 Written evidence from Natural England (NER0082)

152 Ibid.

153 Written evidence from Lincolnshire Wildlife Trust (NER0064)

154 Written evidence from Bat Conservation Trust (NER0061)

155 Written evidence from RSPB (NER0051); see also written evidence from Wildlife and Countryside Link (NER0078)

156 Written evidence from Natural England (NER0082)

157 Written evidence from Natural England (NER0082)

158 Q 27 (Nick Johannsen) and Q 34 (Harry Bowell)

159 Written evidence North Yorkshire County Council (NER0081)

160 Written evidence from Wildlife and Countryside Link (NER0078)

161 Written evidence from East Riding of Yorkshire & Kingston Upon Hull Joint Access Forum (NER0031)

162 The 13 National Trails are: Cleveland Way, Cotswold Way, Hadrian’s Wall Path, North Downs Way, Offa’s Dyke Path, Peddars Way and Norfolk Coast Path, Pennine Bridleway, Pennine Way, South Downs Way, South West Coast Path, Thames Path, The Ridgeway, Yorkshire Wolds Way. The English Coast Path will also have the status of a National Trail once completed.

163 Written evidence from South West Coast Path Association (NER0045)

164 Ibid.

165 Q 187 (Alan Law)

166 Q 152 (Alison Hallas)

167 Q 204 (Michael Gove MP)

168 Ibid.

169 Defra, Health and Harmony: The future for food, farming and the environment in a Green Brexit, Cm 9577, February 2018: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/684003/future-farming-environment-consult-document.pdf [accessed 13 March 2018]

171 Ibid.

172 Written evidence from Broads Local Access Forum (NER0047), East Riding of Yorkshire & Kingston Upon Hull Joint Access Forum (NER0031) and Norfolk Local Access Forum (NER0041)

173 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 72

174 Written evidence from New Forest Access Forum (NER0011)

175 Written evidence from Mid & West Berks Local Access Forum (NER0027), Norfolk Local Access Forum (NER0041) and Broads Local Access Forum (NER0047)

176 Written evidence from Mid & West Berks Local Access Forum (NER0027)

177 Written evidence from Norfolk County Council (NER0042)

178 Q 151 (Alison Hallas and Stephen Russell)

179 Written evidence from the NFU (NER0076)

180 Written evidence from Rotherham Metropolitan Borough Council (NER0072)

181 Written evidence from The Wildlife Trusts (NER0080)

182 Q 64 (Dieter Helm CBE). Under Professor Helm’s proposals the work undertaken by the Environment Agency on flood protection would be undertaken by a national statutory undertaker, akin to the National Grid, with input from the water companies and Ofwat.

183 Q 205 (Michael Gove MP)




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