Environmental Impact Assessment (Agriculture) (England) Regulations 2006

Sorry, that is true, but the title of the second regulations has (No. 2) in it. That was not said by either the Deputy Chairman or the noble Baroness when they read it out. I do not want to be called back here again because the Committee failed to consider the regulations that we have been talking about. The regulations implement parts of the environmental impact assessment directive, which is a very old directive that was introduced in 1985. There is a story to that, which I will repeat in a moment. The directive requires certain types of development projects that are likely to have significant effects on the environment to be subject to environmental impact assessments before they are allowed to proceed. The directive applies to more than 100 different types of project. In the UK, it is implemented mainly through environmental impact assessment rules relating to town and country planning. There are various EIA rules for projects not covered by the planning system, such as transport and forestry projects, and the two types of project to which the EIA agriculture rules apply. The Environmental Impact Assessment Agriculture (England) Regulations came into force on 10 October 2006. They are a small but significant part of our effort to protect and enhance the rural environment, alongside much larger measures such as agri-environment schemes, SSSIs and cross compliance. The regulations do two things: they replace previous environmental impact assessment rules, which were introduced in 2001, applying to projects for the use of uncultivated land and semi-natural areas for intensive agricultural purposes and they introduce new rules applying to projects for the restructuring of rural land holdings. We are legally obliged by the environmentalimpact assessment directive to have these rules, and we were required to introduce them by 1988. ButUK transposition did not occur until 2001 for uncultivated land and 2006 for rural restructuring following infraction pressure. I do not want to be part of the blame culture, but there is a history to this. This has been done under infraction pressures, and the regulations have perhaps not ended up as they would have if they had been done properly when they were required to be done in 1988. We thought that they were delayed largely because the policy issues were already addressed by agri-environment schemes, hedgerows legislation and the SSSI rules. In 2001, Defra introduced environmental impact assessment rules on uncultivated land. They gave a high degree of protection to uncultivated land and semi-natural areas, mainly by having no thresholds, which meant that all relevant projects needed permission before proceeding. Generally speaking, we have a good story to tell on the 2006 regulations—I do not want to over-egg the pudding, but this is a good Defra story for the farming community—which were developed with better regulation and Defra’s farming regulation strategy very much in mind. The objectives in shaping the regulations were to deliver targeted environmental protection while minimising red tape and to avoid hindering our wider policy objectives. Poorly gauged rules could do more harm than good by deterring farmers from signing up to agri-environment schemes or deterring work that is beneficial to the environment. They might also restrict farmers’ ability to diversify their businesses and compete and have a negative effect on the rural land market. We are very keen to take away some of the hurdles that prevent farmers diversifying if we can. As the noble Baroness knows, I am having issues related to planning matters looked at at present. We improved the uncultivated land rules by introducing clearer tests for when projects are caught and by introducing a modest two hectare thresholdto give the rules a lighter touch, while still providing a fairly high level of protection for a valuable environmental resource. We estimate that the revised rules will place 20 to 40 per cent less burden on business than the rules they replace. We introduced the rural restructuring rules under EC infraction pressure. In doing this, we have done all we can to achieve minimum implementation by applying the highest thresholds we reasonably can, given the infraction risk. We have also sought to avoid duplication of existing measures which tackle problematic restructuring, such as the hedgerows regulations and other environmental impact assessment rules applying to planning and forestry. The result is that we have new rules that guard against the possibility of major negative effects on the rural landscape, but will not catch farmers engaged in routine farming activities, which is not our purpose at all. It may shock the noble Baroness that we have had a generally—I do not put it any higher than this—positive response from the National Farmers Union. The NFU website celebrates that it: "““Successfully lobbied government for the introduction of thresholds into the Environmental Impact Assessment (Agriculture) Regulations 2006. This will mean that fewer farmers should have to go through the EIA screening process unnecessarily””." That is quite right. Congratulations for the lobbying that has gone on in the past. It is very important that we genuinely try to take account of the red tape issue. I also want to address some of the issues relating to the Merits Committee. Briefly, the rules work by requiring that anyone wishing to carry out a project must apply to Natural England for a ““screening decision””. If Natural England decides the project is likely to have a significant effect on the environment, the environmental impact assessment must be prepared by the applicant before Natural England makes a final consent decision. People who breach the rules may face cross-compliance deductions, prosecution, and/or have to take remedial action. The noble Lord, Lord Greaves, raised an issue about stone walls covered by cross compliance or possible deductions for removers over 10 metres. He painted a horrible scenario of what might happen in the uplands, which would not be in anyone’s interests. The noble Baroness, Lady Byford, said that she had come to nitpick today—her words, not mine. I do not accuse the noble Baroness of that. I cannot answer all her questions about why the regulations were redone. Obviously, it is much to be regretted that a computer glitch confused the cross-referencing in the initial EIA regulations, so we had to replace them with a corrected set. The rules of a statutory instrument have to be produced compared to a computerised template, in effect, so that the format is the same. The glitch caused the automatic numbering to make an unbidden change at the last moment, which made all the cross-referencing incorrect. Unfortunately, we did not spot the error until a few days after the regulations had been laid. Statutory instruments cannot be amended. There is a case for this House to be able to do that, but I have not come here to do revolutionary reform today. Therefore, we had to lay the corrected version—hence, the No. 2 regulations. We replaced them free of charge to those people who had paid for them. I do not know how many were distributed. If the noble Baroness pushes me I will seek to find out how many and at what cost. That would cause extra cost to the department, but she is entitled to the answers to the question. On the money for Natural England, 9.4 staff years are budgeted, but, by the way, the fines do not pay for the regulations, which would not be normally the case. The Merits Committee has expressed concerns on the regulations. The main concerns were that the regulations failed to give a sufficiently clear definition of the term, "““projects for the restructuring of rural land holdings””" and, as a result, there was a risk of accidental non-compliance and commission of a criminal offence by farmers and others. On the way we defined projects for the restructuring of rural land holdings, the committee’s concern is valid to the extent that we cannot guarantee that farmers will fail to comply accidentally, which is the case with many offences in many laws. To answer the Merits Committee’s concerns, we are bound by the environmental impact assessment directive introduced in 1985, which does not define what projects for the restructuring of rural land holdings means. In transposing the legislation we decided to follow the common practice of simply using the same wording as the directive without further elaboration. This is done, for example, in environmental impact assessment rules on the planning system and forestry. It is also the norm in other EU countries—for example, Irish and Dutch environmental impact assessment rules take the same approach. Although we have not resolved what is meant by, "““projects for the restructuring of rural land holdings””," in our transposing legislation, we have done so in our implementation. For example, we have explained the term in the accompanying guidance. We feel it is reasonable to expect land managers to understand and apply this definition. We consulted the NFU on this, to ensure that the guidance was as user-friendly as possible, and the NFU approved it before it was issued. There may have been a transparency problem if we had set a low threshold, which is one reason we set high thresholds. It does not seem unreasonable to require a person to realise that planning work on the scale of removing or adding more than four kilometres of field boundaries is not a minor job—four kilometres of field boundaries is quite an exercise if one is out there doing it, and I have seen it being done. Nor is removing more than 10,000 tonnes—about 400 large lorry loads of earth or rock. These are substantial jobs by any stretch of the imagination. It is not like, ““I’m nipping out to knock this job off in half a day, dear, and I’ll be back””. The guidance gives details of a Natural England telephone helpline, and other contact details. If managers are in any doubt, they are advised to contact them. It is important to publicise the regulations, which we have done. I was almost tempted to say, ““I have got all this written down, put together by my fine officials, who have explained all this, the background and why it is a good news story to me””. However, a front-page article in Defra’s October Farming Link newspaper, sent out to all farmers, set it out in clear, tabloid language—I do not say that in a derogatory way—which gets the meat across to anyone interested in half a dozen bullet points. At the end, there is the helpline, and email and website addresses. If farmers did nothing but read that, the new rules to protect the countryside and the issues I have raised about the four kilometres and 10,000 tonnes are mentioned there. Our press notice was picked up by the farming press as well, so it did not get buried or die a death. Both the NFU and CLA have issued guidance to members on their own websites, and we have published straightforward guidance on the Defra website. The Merits Committee asked why we chose to make a criminal offence of breaching the restructuring rules. For the avoidance of doubt, we did this because we considered it an effective way of ensuring compliance and making the rules enforceable. It reduces the risk of placing the UK in breach of the directive, which would happen if unnotified and unpermitted projects had significant effects on the environment, and is in the interests of consistency and proportionality. A criminal offence existed in the 2001 regulations, and we plan to keep it for uncultivated land projects. So why would we consider it a criminal offence to fail to give screening permission for an uncultivated land project, but not a restructuring one? As I said, the restructuring must be quite large. We do not expect many to undertake restructuring projects exceeding the high thresholds we have set. It is early days. After the first two months of the regulations, no screening applications have been received to undertake restructuring projects. We expect that trend to continue, because the high thresholds exclude routine land management activities which farmers are rightly doing all the while. That would be normal, whereas what I have outlined is on a large scale. Most restructuring over the threshold will be exempt, because it will already be covered by existing legislation: the environmental impact assessment rules applying to the planning system, forestry, land drainage and water resources, the hedgerow regulations and the Law of Property Act. We have asked Natural England to implement the rules with a light touch. Frankly, I give all Defra’s agencies that advice: see the rules are followed, but do not go over the top. We do not want farmers, or people working on the land, metaphorically trapped by barbed wire and wrapped up in red tape. We are trying to release them from that where we can. People will suffer a criminal penalty only if they are prosecuted and convicted by a court, so it not an issue of being done by Defra officials. Any prosecution would of course have to satisfy the public interest test. This is basically a good news story, subject to the unfortunate glitch. We are prone to using computers; if you press the wrong key or there is a problem with the program, these things happen. It was unfortunate that it was not spotted. I am not in the blame game; I just want to get on with it and see that they are operating effectively, but we regret this. On the recent difficulties, I say to the noble Baroness that this issue appeared nowhere in any of my lists of the cause of the technical adjustment to Defra’s budget this year. It has not been on the scale of other issues. Finally, I am grateful to be able to answer the question of the noble Lord, Lord Greaves, on why rural restructuring is not covered by cross compliance. The short answer is that we were keen to avoid increasing the burden of cross compliance. The new rules are designed to have a light touch, so are intended to catch only a small number of projects, whereas cross compliance already covers some ofthe ground dealt with in the regulations. The benefits of extending cross compliance to cover rural restructuring projects were so small that it was not worth doing. I have no doubt I could give the noble Lord a longer answer, but I hope and imagine that he will be satisfied with that one.