Planning and Infrastructure Bill

Committee stage
Wednesday 17th September 2025 Lords Chamber

Committee (8th Day)

11:06

Relevant Documents: 28th Report from the Delegated Powers Committee. Scottish and Welsh legislative consent sought.

[Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)]

My Lords, we have a large number of groups to get through today to complete Committee. I remind noble Lords of some important points of guidance in the Companion that might help us with that aim. Paragraph 8.81 on speeches at amending stages on Bills states that:

“Members taking part in debate at an amending stage should not use their speech simply to summarise or repeat at length points made by others. They should not make ‘second reading’ speeches or make discursive interventions which are not relevant to the amendment(s) under discussion”.


While there have been many important contributions from all sides of the House, parts of our debates on previous days have strayed into Second Reading speeches and away from the amendments being debated. To make progress on the remaining groups, I therefore ask all noble Lords to ensure that their remarks on further amendments are relevant to the topic under discussion and brief.

Paragraph 8.82 on custom when withdrawing an amendment states that:

“Members (other than the Minister) pressing or withdrawing an amendment should normally be brief and need not respond to all the points made during the debate, nor revisit points made when moving the amendment”.


While many noble Lords have adhered to this, at times long speeches have been made when withdrawing amendments. I urge all noble Lords to keep remarks brief to keep us on track. The Ministers responding will continue to keep speeches as confined as possible while providing a proper response to questions raised in the debate.

Clause 55: Environmental features, environmental impacts and conservation measures

Amendment 242B

Moved by

[Lord Lucas]

242B: Clause 55, page 92, line 1, at end insert—
“(2A) In the five years following the coming into force of this section, EDPs may only apply to nutrient neutrality, and other matters which the Secretary of State determines are appropriately dealt with at the scale of an EDP. (2B) After the period of five years following the coming into force of this section, provisions may be made that concern wildlife and other more local concerns, but the Secretary of State may not make more than five such EDPs in any year.”Member's explanatory statement
This amendment seeks to ensure that the EDP process has time to bed in in uncontroversial areas, and that its further development is not rushed.

[Lord Lucas (Con)]

My Lords, responding to the noble Lord opposite, I draw the attention of the House to paragraph 4.31 of the Companion. Committee stage is a conversation; it is a free for all. Members may speak when they want and as often as they want. The point is to get to the root of the issues that we are discussing. We are here to do a job, not to stick to a timetable. If that takes us again past midnight, that is what we are here for. The point is to get through it, so that we conclude the arguments and can be much briefer and more formal on Report. This phrase “before the Minister sits down” is not a Committee phrase. We have the right to speak at any time. We must hold to that right, because that is the core of us doing our job well in this place.

The amendment proposes that we take the question of environmental delivery plans at a gentler pace, and that we start by applying them in circumstances where the concept obviously works. Things that operate on a large scale, nutrient neutrality, water problems and other such issues are landscape-scale problems that need landscape-scale solutions. However, as we heard on the last day of debate, matters such as species are much more difficult to deal with.

We have a huge amount of uncertainty at the moment. From talking to the developer community and listening to them, I know that they see the Bill as paralysing development for the next five years. The Bill is meant to accelerate development, but as we have it at the moment it does the exact opposite. It creates so much uncertainty on how Part 3 will work, what it will feel like and how it will develop. Natural England has huge powers, and there are lots of big sums of money going this way and the other, but no one knows how it will happen. No one really understands how Natural England has the capacity to manage something of this scale—or even of this type—and what sets of behaviours to expect from it. We are setting ourselves up for five years of stasis, five years of not getting anywhere, because it will take that long for the system to settle in.

There is a better way to do this: to pace things, pilot things and do the easy bits first, and to make an early announcement of where the pilot EDPs will be, so that people can get their heads around it, and have large and open discussions about this. The provision that we are looking at is supposed to last a long time. There is no point in this being done in a constricted and partisan way—it will just break open the next time we have a change in Government. Everybody who wants to be involved in this is being asked to commit over long timescales. We politicians must adjust ourselves to that; we must run this in a way that allows people to have confidence in the politics over a long time.

The Government’s behaviour on biodiversity net gain is not a good sign of where they are in this space. I urge them to have wide discussions and involve people who are of obvious quality and depth, and who are likely to be there and involved in the discussion in years to come. In particular, I urge them to involve people from opposition parties; it should not be the Conservatives’ choice of who to involve but the Government’s, rather like how my noble friend Lord Gove appointed the current chair of Natural England. They are not a natural Conservative supporter but someone who, because they were not a natural Conservative supporter, has lasted and commanded the respect of this Government. We want something that will run through—long-term thinking, long-term commitments and long-term relationships to build confidence. Amendment 242B says, “Let’s take it that way. Let’s take it slowly and carefully, let’s take people with us, rather than have some big and uncontrolled explosion.” I beg to move.

[Lord Teverson (LD)]

My Lords, I will speak to my Amendments 271 and 272. In response to the Minister, one way of quickening these procedures, and getting rid of the risk of a Member speaking for a long time while withdrawing an amendment, is actually for the Government to accept a few of the amendments. Altogether, I think we have probably tabled some 400 amendments, many of which seem to be common sense. However, we seem to have had ministerial resistance to absolutely everything so far, which I do not think is a particularly good sign. However, I shall give the Government a chance because my amendments should obviously be accepted.

Even more seriously, Clause 58(2) starts quite promisingly. It says:

“In preparing an EDP, Natural England must have regard to”,


and then lists

“the development plan for the development area … the current environmental improvement plan … any Environment Act strategies”—

which, I am pleased to say, would include local nature recovery strategies. However, at the end of the subsection, it says

“so far as Natural England considers them to be relevant”.

11:15

My amendment seeks to say that, no, Natural England cannot ignore those three areas of plan and strategy; it has to have regard to them. I agree that Natural England should be able to consider whether

“any other strategies or plans”,

as paragraph (d) says, are relevant, but it is crucial that Natural England, when preparing EDPs, has regard to development plans, current environmental improvement plans and any strategies under the Environment Act. It seems obvious to me that it should be that way. The amendment is very simple. It would be delightful if the Government agreed to at least one of the 400 amendments we have looked at over these eight days.

[Lord Lansley (Con)]

On the assumption that the Minister is not going to speak to her amendments in the group at this point, I would like to speak to my Amendment 344.

The noble Lord, Lord Teverson, was talking about Clause 58 as it is in the Bill at present, but the effect of two amendments in this group—government Amendments 278A and 346E—is to delete the current Clause 58 and replace it with the new clause proposed in Amendment 346E, which will come before Clause 88. Just so that noble Lords are aware, that new clause more or less reproduces Clause 58, but extends it. The Minister will want to explain why that is the case. However, the point made by the noble Lord is exactly the same for the replacement text.

My noble friend Lady Neville-Rolfe, who tabled Amendment 275A in this group, is unable to be with us this morning. The purpose of the amendment is very straightforward and it will, I hope, be agreed on all sides of the House: when making an environmental delivery plan, regard should be had to small house- builders—indeed, so far as possible, account should be given and possibilities exercised to enable small housebuilders to conduct their business. The most important thing when the Government publish viability assessment guidance is that, as the Minister said in an earlier debate, the objective of the EDP is not to make development economically unviable. That being the case, this is an issue for smaller housebuilders, which find it most difficult to bear the burden of regulation and cost when preparing development. I hope that the Minister will be able to give reassurance on the point about small housebuilders made in the amendment tabled by my noble friend Lady Neville-Rolfe that the viability assessment guidance will specifically mention them and make allowance for them.

My Amendment 344, which is also about making an environmental delivery plan, makes a very simple point: at some point, Natural England needs to know in which potential developments it needs to consider making an environmental delivery plan. I do not see that in the Bill at the moment. The purpose of my amendment is to say that when local planning authorities are ready to put sites forward in, for example, a submission to the Secretary of State for the adoption of a local plan—not when they call for sites or are considering sites; this can be in guidance—they should notify Natural England of sites which have protected features, with protected sites or protected species involved. We know those sites are going to be pretty evident, so they should identify those themselves and notify Natural England.

I hope the Minister will say that this is intended to happen anyway, but it would be a good idea if it were expressed in the Bill, so that local planning authorities, which, of course, operate in their plan-making processes according to statutory timetables and statutory provisions, have a statutory requirement to notify Natural England about the potential need to make an environmental delivery plan. That is all I wish to say about this.

I just want to note something so that noble Lords are not surprised: when we get to Clause 58, we are going to take it out. But it is now that we are discussing what is effectively the language of Clause 58, and it is worth being aware that this is the case.

[Baroness Coffey (Con)]

My Lords, I shall speak to Amendment 242B tabled by my noble friend Lord Lucas. I strongly support the part of his amendment that inserts proposed new subsection (2A), but I am not so sure about proposed new subsection (2B)—(2B) or not (2B), that is the question he is proposing. Nevertheless, my suggestion to him is that I do not think anybody concerned about nature should then also try to limit growth; the two can be done hand in hand.

If Natural England or the Secretary of State for Housing need more resources or decide to subcontract to any designated person, that could be a private developer, which could come up with an EDP under the laws proposed by the Government. I am not saying that would be right, but people should be aware of the scope of where we are going. I would not support my noble friend if he re-tabled this amendment on Report to the full extent.

I think proposed new subsection (2A) is a very sensible approach on nutrient neutrality, the consideration of which is one of the issues that is particularly holding up aspects of development. This is the reason the Government have given more broadly. Of course, they have also latched on to a variety of things like jumping spiders and even ancient woodland, while still expressing concern for irreplaceable habitat. Nevertheless, we should have that very specific focus on what has been holding up the 1.5 million homes that the Government have promised to deliver by the end of this Parliament. We should keep focused on where these potential EDPs need to be, and that will keep Natural England focused as well.

[Lord Fuller (Con)]

My Lords, I shall speak to government Amendment 346E in the names of the noble Baroness, Lady Taylor, and the noble Lord, Lord Grantchester, and Amendment 275A in the name of my noble friend Lady Neville-Rolfe.

I approached this group with the words of the noble Lord, Lord Livermore, ringing in my ears from yesterday’s Oral Questions. He boasted how the Government’s planning reforms would cut away the bureaucracy to get Britain building. Perhaps he was thinking about that other planning Bill announced by the Chancellor in August. He could not have been thinking about the one before us today, because given the combination of Part 3 of this Bill, the involvement of Natural England, and the astonishingly long preparation process for EDPs, starting in Clause 58 but going on as far as Clause 61, it is difficult to see how any mitigation proposal envisaged by Part 3 can be completed in the three and a half years from now —and that for a Government who have only three and three-quarter years to run.

Even if Part 3 stands part of the Bill at the point of assent, it will take until the next Parliament before someone gets the keys to a new home that has been subject to an EDP. Perhaps someone should tell the noble Lord, Lord Livermore, that Part 3 does not work, and it will not get Britain building or the economy growing. I should know, because I have been in this space for the last three and a half years as the instigator and a person of significant control in Norfolk Environmental Credits Ltd, a company established and owned by all the planning authorities in Norfolk for the benefit of the local councils, taxpayers and economy. I know what I am talking about—this is another one of my specialist subjects.

I observe that government amendment 346E is a long one. I suppose we should be grateful that it recognises that the Bill as introduced was deficient, but it is incomplete. It articulates the problem and identifies the EDP participants, but it does not contemplate the earliest formative stages—the commercial, legal and contractual practicalities to put it into effect.

Let us think about the EDP processes that start in Clause 58. At the outset, it emerged on Monday that Natural England will report to the MHCLG Secretary of State, not Defra. That is quite a revelation. What technical knowledge exists in MHCLG to judge the veracity of the poor-science and unevidenced assertion referred to by the noble Lord, Lord Hunt, in today’s Telegraph, where he is reported to have said that “anti- growth” environment quangos are blocking developments on spurious grounds? How can MHCLG have the intellect and capacity to assess this spuriousness?

Our company in Norfolk aims to go beyond the desirability of cleaning up our rivers and devise commercial models that are legally robust and contractually certain, with a financial system that discounts the 80-year tail liabilities and makes the bridge between those who need to purchase mitigation and those who are prepared to provide it. I can tell noble Lords from personal practical experience how hard it is to devise a system to resuscitate the second-largest sector of our local economy—which has been placed in suspended animation for the past three and a half years—to provide the much-needed homes, affordable-homes infrastructure and mitigation in an area two-thirds of the size of our county.

My insight is that, before the provisions envisaged by this amendment are engaged, there are some fundamental principles to be established first. They should be set in statute, but they are not. It is envisaged that the EDPs will issue permits or licences. It is a critical point. A permit is something that is purchased and bought and has asset value. Noble Lords with long memories will remember the last time the state tried to introduce such permits to solve a problem: it created the madness of the milk quota system. By contrast, a local authority issuing licences provides for the point at which the mitigation is no longer required because, say, the local sewage treatment plant has been upgraded. Then the licence can be surrendered and issued again, with that second slice of revenue returned to the taxpayer.

At the drop-in session last week, Natural England’s representatives had blank faces when I asked them what they planned to sell to developers—permits or licences. They had not a clue. That illustrates the intellectual hole in that organisation. The risk of the permit approach is that, once issued to the builder of a new home, the nutrient neutrality permit is attached to that home and goes with the conveyance. That permit will have cost somewhere between £5,000 and £15,000. That is a pretty powerful incentive for the home owner to sell it on to someone else, so we find ourselves, as with milk quotas, sleepwalking into creating markets for tradeable assets, secondary markets, derivatives and everything else that history tells us happens when the state gets into the permitting business. The taxpayer misses out: that is the lesson from the milk quota fiasco.

By contrast, a licence is never owned by the developer or the landowner; it does not exist as an asset; contractually, it is tied to the property; and it can only be surrendered back to that property. The perverse incentive to sell it on and create secondary markets falls away. That is what we should be doing, but none of this fundamental design principle or parameter is contemplated by either Amendment 346E or the Bill.

Let us move on and think about the longevity of an EDP. It is proposed that an EDP lasts for 10 years—an assertion restated in the letter to noble Lords this morning, for which I thank the Ministers. But the tail liabilities are 80 years for nutrient neutrality and 30 years for biodiversity net gain, so I question whether a local planning authority can issue a permission if they are not sure what will happen between year 11 and year 80. I do not believe they can legally issue the permission. Perhaps the Minister will clarify that.

11:30

There is also the question of when multiple EDPs, each at a different stage of stage of development, will apply to a proposal. We heard earlier this week that a single planning proposal could be subject to a layering of EDPs. The clock—or should I say planning blight?—will start ticking the moment Natural England postulates the proposal, but there may be serial clocks running at the same time. This is particularly benighting for small builders, which is why I heartily endorse Amendment 275A in the name of my noble friend Lady Neville-Rolfe. We were told last week that developers will have a choice, that there will be no compulsion to purchase an EDP and that they may purchase other private options. That has been reiterated today in the letter from the Ministers. They make the point that it will be voluntary to buy an EDP from the state—unless it is compulsory, in which case there will be no choice. There are powers in the Bill to force a developer to use an EDP in certain circumstances, no matter how expensive it is, no matter how far away it is, and however long it takes to produce. There will be a choice for these small developers: it is Hobson’s choice, and that is no good. I am concerned for what is becoming a dynamic and well-developed private industry that is innovating and being creative in the provision of mitigations.

Previously, the Minister smirked when I said that the Bill, with all its monopoly regulator and supplier functions, means that Natural England has effectively nationalised nature. I do not see anybody laughing now, because that is what we are sleepwalking into. A developer may need to pay twice for his mitigation—once for a private scheme close at hand that is acceptable to local people and the planning authority, and again because it is compulsory to purchase another one miles away. Whichever option is chosen, the very act of triggering the EDP process effectively sterilises that proposal and makes it harder to get Britain building.

Time is limited, but there are many more fundamental design questions and processes I could ask about before we even get to the start line, and it would have been much more helpful, in my view. I thank the noble Lord, Lord Krebs, for his detailed diagram, which has been circulated this morning. That diagram would have been much better had there been a timeline before then, because it assumes the EDP exists. As my noble friend Lord Lucas said, it is probably at least three and a half, possibly as many as five years until we get to that start line. Noble Lords need to understand that.

On Monday, the noble Earl, Lord Russell, asked why we are doing this and what the purpose is. It seems to me that the purpose of Part 3 is not to clean up nature or to get Britain building; it is simply to puff up an anti-growth quango, giving it a super-veto over developments in a significant proportion of our nation, for no other purpose than to build a bureaucracy that gets in the way of growth, makes it harder to generate taxes for public services, and is so expensive to the developer that the pursuance of other important infra- structure such as social housing is crowded out.

It is still not too late to excise Part 3 from the record, and with only four days allocated on Report in October, that would make our job much easier. The assertion yesterday at the Dispatch Box by the noble Lord, Lord Livermore, that this planning reform is going to speed up building is a confidence trick. I welcome Amendment 346E, as far as it goes, but it needs to go much further in contemplating the “how” as well as the “what” if we are not to stymie growth until the next Parliament.

[Baroness Parminter (LD)]

My Lords, as this is the first group, I am grateful that the noble Lord, Lord Lucas, stood up to remind us that this is a conversation, not a 10-minute monologue. As the noble Lord who spoke before me is new to this House, I shall tell him that civil servants cannot defend themselves in this Chamber. He arrived late at that meeting last week, so he was not there to have benefit the rest of us had of the information that they in good faith provided. I ask him in future discussions in this House to refrain from criticising people who cannot reply for themselves, and from making unnecessary comments about the Minister, who has shown to all Members that she is acting in good faith and will listen to our conversations—and, we hope, will come back on Report and offer us some changes based on the evidence.

[Baroness Coffey (Con)]

My Lords, I speak to Amendment 264A. My noble friend Lord Swire cannot be here. He has a particular theme running through on issues regarding pylons and he would appreciate a response from the Minister in regard to what he submitted. There is a broader point on how we are unfortunately going back to prioritising climate over nature, when they should go hand in hand. We hear comments like that from Ed Miliband, the Secretary of State for DESNZ, about how climate change is the number one threat to nature; I am afraid that that is not what the scientists say. It is in the top five, but is not number one. When we are considering changes in this Bill more broadly—my noble friend Lord Swire reminds us of aspects of energy infrastructure—we should have that fully in mind.

[The Earl of Caithness (Con)]

My Lords, I would like to look forward to the Government’s Amendment 346E and in particular subsection (2) of the proposed new clause, which says:

“Natural England or the Secretary of State must take account of the best available scientific evidence”.


I ask the Minister whether that is going to comprise part of the EDP.

In explaining the reason I ask that, I will refer to some of the conversations I had with the Minister on Monday’s debate and, in particular, to the email that I wrote this morning asking for a more detailed reply. In reply to my contribution, the noble Baroness, Lady Hayman, said that she had already spoken about getting scrutiny of the EDP. She said:

“I want to clarify that, before the EDP comes to the Secretary of State, it will be subject to proper scrutiny through public consultation”.—[Official Report, 15/9/25; col. 2003.]


It is helpful to have that, but could today’s Minister please enlighten the House about how that consultation will take place? Unless the information is cited in the EDP, it is going to be very hard to challenge. One of the complaints that I have about Natural England is how hard it is to challenge it when it comes to scientific evidence, because it hides behind the legal situation and says it is a precautionary principle: “Lump it, all of you”.

On my noble friend Lord Lucas’s amendment, I wonder if the Minister is satisfied about the present position with regard to Natural England and nutrients. My noble friend wants to limit the EDP to nutrient mitigation, and I think that is sensible and that the current situation is working well. Natural England’s nutrient mitigation scheme was set up in 2022 using £33.5 million of public money. This was based on its proposals to the Secretary of State. Since then, Natural England has spent £17.54 million setting up its off-setting scheme to generate 10,097 nutrient credits by removing 704 hectares of farmland from food production. When a new company in the private sector put forward a proposal to provide nutrient credits without taking farmland out of production, Natural England initially said yes; it then reversed its decision, as I explained on Monday.

Natural England claims that it does not make a profit from the sale of nutrient credits as they are priced at cost recovery. However, if one examines the figures, one can contradict this, because its internal costings show that a credit in Dorset costs £1,685 and that, when administration fees are accounted for, it would cost £1,938. However, it has been selling nutrient credits on the market at a significant mark-up of £3,250, plus a 10% administration fee. This suggests to me that Natural England is making a profit of up to £1,637 per nutrient credit, representing a profit margin of 45.8%.

In the letter that I received from the Ministers this morning, to which reference has already been made— I must say I am grateful for it; I wish we had had it before we began our proceedings on Monday—the last sentence of the third-from-last paragraph says:

“Once EDPs are made, we expect them to be delivered on a cost-recovery basis, while ensuring good value for money for developers by ensuring competition and innovation in the procurement of conservation measures”.


I have just shown that the nutrient market is not being operated at cost recovery by Natural England and that it is excluding the competition. How, when you have that existing situation, does the Minister really expect the EDPs to be offered on a different basis?

[Lord Roborough (Con)]

My Lords, I will speak briefly to several amendments in this group concerning environmental delivery plans.

I start by thanking my noble friend Lord Lucas, both for introducing this group and for tabling Amendment 242B. This amendment seeks to ensure that the EDP process has time to bed in within uncontroversial areas, and that its further development is not rushed. As we have learned, EDPs are themselves controversial, so we are of course sympathetic to this amendment and to other noble Lords’ words on nutrient neutrality. Elsewhere, we have offered amendments that could immediately release 160,000 units of housing stock from Natural England advice, which is blocking those developments. Can EDPs deliver that? Can they release 160,000 units from this Natural England advice once the Act commences?

I thank the noble Lord, Lord Teverson, for tabling Amendments 271 and 272. These seek to ensure that, when preparing an EDP, Natural England must have regard to all the plans listed in Clause 58(2)(a) to (c) rather than only those it considers to be relevant. These are serious points, and I hope the Minister will reflect carefully on them in response. In light of these amendments, are the Government minded to clarify how Natural England is to weigh these existing plans?

I am also grateful to my noble friend Lord Lansley for Amendment 344, which would require plan-making authorities to notify Natural England when they allocate potential sites for development where an EDP would be needed. This strikes me as a completely sound and practical amendment which would help to ensure co-ordination between local planning and Natural England’s role.

I turn briefly on my noble friend Lord Swire’s amendment, kindly introduced by my noble friend Lady Coffey. I have to say that I am impressed by my noble friend’s ingenuity in returning to one of his favourite topics. I am not convinced that Natural England has the bandwidth for the existing initiatives in the Bill without adding further burdens to them.

To conclude, we look forward to hearing the Minister outline the Government’s own amendments in this group. They appear to be minor and technical, and we are grateful for the drafting corrections, particularly Amendment 346E. Clause 58 already sets out matters to which Natural England must have regard when preparing an EDP. This amendment would extend that duty to the amendment and revocation of EDPs by both Natural England and the Secretary of State. It would also add further matters to which they must have regard. It would be helpful to understand how these additional considerations are expected to operate in practice. We would welcome this clarification, and I hope the Minister can reassure the House that the Government’s approach will match the scale of the responsibilities being placed on Natural England.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, before I respond to the debate, I thank the noble Baroness, Lady Parminter, for her comments. I also remind noble Lords that our civil servants across all departments work extremely hard. They bring valuable support to Ministers, and it really is not appropriate to question their intellectual ability during a debate.

As we set out in Committee on Monday, the Government remain firmly of the view that, when it comes to development in the environment, we can do better than the status quo, which too often sees both sustainable housebuilding and nature recovery stall. Instead of environmental protections being seen as barriers to growth, we are determined to unlock a win-win for the economy and for nature, and that is why Part 3 is important.

Following the introduction of this Bill, we have taken seriously the concerns expressed by those who were not yet convinced that the provisions in Part 3 provided the necessary certainty that the nature restoration fund will deliver in practice the potential environmental benefits that it offers. So, with a view to ensuring that everyone has confidence that the nature restoration fund delivers those improved outcomes for nature that are at the core of the model, we have continued to engage with expert stakeholders. Having done so, the Government have developed a comprehensive set of amendments for consideration. Taken together, we are confident that the package will provide reassurance that the nature restoration fund will restore, not harm, nature, while at the same time ensuring that housebuilders benefit from the same streamlined process to discharge their environmental obligations and get Britain building.

11:45

So, I shall speak first to government Amendments 249A, 256A, 260A, 278A and 346E. They make a series of minor legislative fixes and consequential amendments necessary for the correct operation of the legislation and support the more substantive government amendments. Government Amendment 346E puts in place a new clause that is intended to replace Clause 58. The new clause will explicitly require Natural England and the Secretary of State to have regard to the best available scientific evidence when carrying out any functions related to the preparation, revocation or amendment of an environmental delivery plan, or when the Secretary of State is considering or delivering remedial measures. They must also consider a site’s conservation objectives when they relate to environmental features included in an EDP. The noble Earl, Lord Caithness, asked about scientific evidence. I hope that helps to clarify one of his questions.

At this stage, I should also like to make a further clarification around the reference to the Secretary of State. Following the discussions on Monday and further discussions within the department, I can now clarify that the Secretary of State referred to is the Secretary of State for Defra, unless there is good reason for it to be otherwise. We are looking for the response to previous debates to clarify some of the questions that have come up around this and to make it clear to noble Lords that EDPs will be evidence-based and support the wider conservation objectives of the environmental feature.

In designing and delivering conservation measures, Natural England will continue to be guided by existing obligations to seek to achieve and maintain favourable conservation status for protected species. This is now explicitly embedded in the NRF framework by way of another additional duty within this Amendment 346E to have regard to maintaining and/or improving favourable conservation status of species subject to an EDP.

I turn to the non-governmental amendments. The amendment moved by the noble Lord, Lord Lucas, would significantly restrict the application of EDPs and reduce their ability to accelerate development. While nutrient neutrality is an important issue that is being covered by the first EDPs, addressing this issue alone is not enough to deliver the level of growth that the Government are seeking to achieve, and it would limit the environmental aspirations of EDPs, as these would secure better environmental outcomes than the status quo, and limiting it in this way would reduce the ability of EDPs to support nature recovery. It also could be argued that all EDPs in some way concern wildlife, as they concern protected species and habitats, but this will be more clear-cut in some instances than others, and it may also be unclear, therefore, what might be considered to be a local concern. Restricting the number of EDPs that come forward risks reducing their ability to support development or incentivise larger, broader EDPs, and that would appear to run counter to the aim of the amendment. As the noble Baroness, Lady Coffey, said, we need to keep focused.

I should also refer to the points made by the noble Earl, Lord Caithness. In response to this amendment and other discussions, he has raised a number of detailed concerns and asked a number of detailed questions that I do not have all the answers to at present. I am aware that he has a meeting with Natural England on 16 October, and I suggest to the noble Earl that I join that meeting, if he is happy for me to do so. I can try and get a better understanding of many of his concerns and perhaps get into some of the nitty-gritty regarding the concerns around Natural England, if that would suit him.

Moving on to Amendments 271 and 272 tabled by the noble Lord, Lord Teverson, we believe mandating consideration of all plans would be disproportionate, because it would take up time and resource for no additional value, while potentially raising costs for developers and slowing the rate at which EDPs are produced. There is no practical reason for forcing Natural England to consider plans that might not be relevant. As such, we feel it is appropriate to allow Natural England to have regard only to those plans that it considers to be relevant.

Amendment 344, tabled by the noble Lord, Lord Lansley, would add a duty on local authorities to inform Natural England of potential sites for development that may require an EDP while making development plans. As the noble Lord noted, the Bill already requires Natural England to have regard to development plans when they are relevant, which, as the noble Lord will appreciate, they pretty much always will be. Furthermore, local authorities are required to co-operate with Natural England in the preparation of an EDP, which is likely to include providing any information relating to proposed site allocations. We believe requiring local authorities to proactively provide this information in all cases places an unnecessary administrative burden on them, but of course local authorities can reach out to Government or to Natural England to request that an EDP be prepared. We believe the Bill already provides for proper engagement and communication between Natural England and local authorities.

Amendment 264A, which was tabled by the noble Lord, Lord Swire, and ably introduced by the noble Baroness, Lady Coffey, would require Natural England to prepare an EDP covering development consents for overhead power lines under the Electricity Act 1989. Although I cannot help but admire the noble Lord’s ambition—or, as the noble Lord, Lord Roborough, said, his ingenuity—this would place an unmanageable burden on Natural England. In practice, this would require EDPs covering the whole of England, addressing a wide range of environmental considerations. Some power lines may benefit from having an EDP in place, but others may have environmental effects that could not be effectively addressed in this way. If taken forward, this amendment would require Natural England to bring forward potentially ineffective EDPs in order to meet this duty, rather than targeting EDPs where they would be most effective for nature and growth.

Finally, I turn to Amendment 275A tabled by the noble Baroness, Lady Neville-Rolfe, regarding consideration of SME housebuilders. She kindly messaged to say that she was not going to be able to be here today and I thank her for that. It is important that she has drawn attention to the need to understand potential impacts on small housebuilders. The nature restoration fund is an alternative way to discharge existing environmental obligations. It does not create new obligations for developers and, as charging schedules will be published as part of the EDP, developers will be able to make informed choices based on known costs rather than having to await the outcome of often complex environmental assessments before knowing the cost of meeting a relevant environmental obligation.

This upfront clarity is vital for developers, especially for smaller housebuilders. When a developer chooses to use an EDP, the payment of the levy legally discharges the relevant environmental obligations. This transfer of responsibility for securing environmental outcomes derisks development, which will be particularly beneficial to SME developers, which often have less resource for consultancy and legal services. The Secretary of State, when making the levy regulations, is already required to ensure that the viability of development is considered and may set different rates for different scales or types of development as well. SMEs have been an important consideration for the Government when we have been designing this legislation, so I hope that on that basis the noble Baroness will not press her amendment. With these explanations, I hope noble Lords are content not to press their amendments.

[The Earl of Caithness (Con)]

My Lords, I am extremely grateful for the offer that the Minister made to join the meeting that I am going to have with Natural England. It was to be a rather focused meeting, but I am happy to widen it. I am delighted that the noble Baroness would come. That would be extremely helpful. I hope that Natural England will give us time to have a proper meeting on heather burning and fuel load, as well as EDPs and the scientific advice, and make it a broader meeting. I am extremely grateful to her and I thank her very much.

[Lord Lucas (Con)]

My Lords, I am very grateful to the Minister for her reply to my amendment. Would she be prepared for me to open a discussion with her officials on the subject of my amendment? We need to do something to increase developers’ understanding of what it will be like under the new regime. If we are to get development going, we need to have the confidence generated.

[Baroness Hayman of Ullock (Lab)]

Of course. To all noble Lords, I say that, between Committee and Report, my noble friend and I are very happy to sit down and discuss amendments or any concerns further with officials.

[Lord Lucas (Con)]

I am grateful for that, but I am not surprised; that has been the way the noble Baroness has conducted herself through all her time as a Minister.

I wanted to go back to one of my earlier amendments on biodiversity data. Since she has her colleague, the noble Baroness, Lady Taylor, sitting next to her, might she have a conversation about unblocking the flow of biodiversity data generated in the course of planning permissions and getting that through to the local environment record centres, so that it is available to become part of the scientific information, which Natural England can draw on in making an EDP? Her department, or parts of it, and Natural England are active in this area. I would really like to know that this is an area where the Government are determined to make progress.

I am encouraged by the Minister’s nodding. I beg leave to withdraw the amendment.

Amendment 242B withdrawn.

Amendment 243 not moved.

Amendment 244

Moved by

[Baroness Grender]

244: Clause 55, page 92, line 6, leave out “an” and insert “a significant”
Member’s explanatory statement
This amendment would require that an improvement made to the conservation status of an identified environmental feature within environmental delivery plans should be significant.

[Baroness Grender (LD)]

My Lords, I will speak to Amendments 244 and 287. These proposals have a clear and focused aim: to secure stronger and more reliable protections for our natural environment through the planning system. I wish to lay out why these changes are not just desirable, but necessary, in light of both recent evidence and practical experience.

Amendment 244 addresses the language on improvements to conservation status, requiring that any improvement to an identified environmental feature within environmental delivery plans be significant. At present, the Bill allows for any improvement to be considered a success, but the reality in England suggests otherwise. By introducing the word “significant”, the amendment raises the test and prevents superficial or minimal gains being counted as genuine progress. It recognises that piecemeal gestures will not restore all-important lost habitats or endangered species. Instead, substantial positive action must become the norm.

This approach also brings better alignment with recommendations that already exist from Defra and findings from ongoing reviews of environmental policy. According to the State of Nature report, wildlife abundance has dropped by 32% since 1970, and 13% of species are now under genuine threat.

On these Benches, we believe that existing standards are simply not sufficient to reverse these declines. The amendment provides clarity for both developers and planning authorities. It ensures that when environmental delivery plans are prepared, their targets must be meaningful and that stakeholders will know that marginal improvements are insufficient.

As a result, both local communities and our wider natural environment will benefit from projects that contribute to measurable ecological recovery. The purpose is not to block development, but rather to set a standard that matches the gravity of the challenge England faces. The amendment also provides transparency and accountability, making it clear to all involved parties exactly what is required for a project to meet its conservation obligations.

Turning to Amendment 287, the rationale is similarly rooted in evidence and practical experience. At present, the Bill requires that developments are likely to improve the environment. In practice, the term “likely” is too vague and too weak.

A University of Sheffield study revealed that 75% of bird and bat boxes, required already in planning conditions, were never actually installed. Such figures clearly highlight how easily requirements can fall through the cracks when they are based only on probability. The public and environmental groups have repeatedly raised concerns about such non-delivery. This amendment replaces “are likely to” with “will”. Its objective is very simple: to ensure that the promised improvements are delivered.

12:00

Planning policy must be clear and enforceable, so developers and local authorities understand their obligations and are held to them. This change would lead to a step change in the credibility and effectiveness of planning conditions. It strengthens the system by making policy outcomes more reliable and by increasing public confidence in the planning process.

This group includes many other amendments with the aim of further strengthening the NRF model and the overall improvement test. The government Ministers present have listened and acted—impressively so—over the summer and changed Part 3 of the Bill, and we thank them for that. Frankly, Rachel Reeves owes them several beers, if that is their favourite tipple. They have listened and changed over the summer, which is deeply impressive.

We are asking for further improvements within this group, and many of them are reasonable. In particular, I commend those signed by my noble friends Lord Russell and Lady Parminter. Our own Liberal Democrat approach has long prioritised clear, enforceable measures over aspiration alone. These amendments reflect that commitment, prioritising tangible benefit for nature, robust monitoring and transparent standards. They address current weaknesses in the legislation, improve the reliability of outcomes and support public trust. I beg to move.

[Lord Randall of Uxbridge (Con)]

My Lords, I have several amendments in this group. First, I say to the noble Lord, Lord Teverson, that the chances of the Government agreeing to an amendment are very slim. I remember being in opposition in the other place in Committee on the Bill setting up the Greater London Authority, and we discovered that there was a comma missing. We moved an amendment to that effect, which was rejected by the Government and brought back on Report—so we get the mentality of these things.

[Lord Teverson (LD)]

I am sorry, I will not take up the time of the House, but there is a precedent in this House, in that the noble Lord, Lord Rooker, during the passage of the climate change Act in 2006, at one point threw his papers away and said not quite “Damn it”, but that he was going to agree to this one, despite what the department says, and it went through. However, I have never had another instance of that happening.

[Lord Randall of Uxbridge (Con)]

The amendments I have put down are all about making sure we had scientific evidence and consultation. I am a bear of little brain—

[Lord Robathan (Con)]

Hear, hear.

[Lord Randall of Uxbridge (Con)]

There is no need to agree—it was meant sarcastically.

[Noble Lords]

Oh!

[Lord Randall of Uxbridge (Con)]

It seems to me that the Minister and the department have shot my fox, except I know the Minister is not really keen on shooting foxes at all. In fact, although they have not agreed to my amendments, the very thing that I wanted is in government Amendment 346E. I think that is right. I will blame the fact that I have new glasses and cannot read things very well, but I assume that this is the case, and that is probably enough for me to say.

[The Earl of Caithness (Con)]

My Lords, like my noble friend who has just spoken, my amendments in this group are about challenging the EDP. We spoke about that on the last amendment; I do not think there is any need for me to repeat myself. I express my thanks to the Minister, who will probably go into this in quite some detail.

[Baroness Young of Old Scone (Lab)]

My Lords, my Amendment 285AA is about the way in which the Secretary of State approves EDPs. As currently drafted, the Bill says:

“The Secretary of State may make the EDP”—


that is, approve it—

“only if the Secretary of State considers that the EDP passes the overall improvement test”.

The “overall improvement test” is the key test of whether an EDP is sufficient and should go ahead but the Bill does not make it clear on what basis the Secretary of State will make his consideration. If I understand it correctly, the Secretary of State who will do this part of the process is the Secretary of State at MHCLG and not Defra, unless I have misunderstood what the Minister has just said.

[Baroness Hayman of Ullock (Lab)]

I apologise. The noble Baroness had not misunderstood, but we have had further discussions and I clarified in the previous group that the Secretary of State referred to is the Secretary of State for Defra, unless there are good reasons for it to be otherwise.

[Baroness Young of Old Scone (Lab)]

I thank the Minister for her clarification. That is a bit of a relief, to be frank, because most MHCLG Secretaries of State are not appointed for their depth of ecological knowledge, nor indeed are the civil servants in that department.

However, that does not overcome the principal problem that the way it is drafted rather implies that it is based on the Secretary of State’s judgment and consideration, rather than the evidence. Existing environmental law is effective because it requires that, if an adverse effect on the integrity of an internationally important site cannot be avoided, then changes that would impact it would be consented to only where there are imperative reasons of “overriding public interest”. That is a technical term which is well-based in case law, and there is long-standing case law as to the evidence base required to demonstrate overriding public interest.

Clause 63 seems to make the new overall improvement test a much more subjective decision of the Secretary of State for Defra, in that it is about his or her consideration, and the test is passed solely on the basis of whether or not the Secretary of State considers that it is passed. Therefore, it is not a requirement in the Bill for the opinion to be underpinned by evidence. We understand that, frankly, it would be crazy for the Secretary of State to make some wild, unevidenced decision, but the way the Bill is currently framed means that the decision is unlikely to be legally challengeable if they did.

My amendment proposes deleting

“the Secretary of State considers that”,

which would remove the subjective element and, I hope, establish that the Secretary of State’s decision on the overall improvement test would be more about objectivity and evidence. It would give scope for the Secretary of State’s decision to be challenged in court if it is clearly flawed or runs contrary to the scientific evidence, whereas, at present, the drafting of the Bill places the Secretary of State’s judgment in primacy over the evidence.

I repeat that this is, thank goodness, going to be done by a Secretary of State who may have a sporting chance of knowing what they are talking about, but it would be good to hear reassurance from the Minister as to the basis of the evidence on which the Secretary of State will make the decision about the overall improvement test in subsections (3), (4) and (5) of Clause 60.

[Lord Gascoigne (Con)]

My Lords, I will speak to Amendments 286 and 300, in the name of the noble Baroness, Lady Willis of Summertown, who, alas, gives her apologies that she is unable to speak today. I have signed the amendments, alongside other noble Lords, and hope I do them some justice.

As noble Lords will see, these two amendments—and pretty much this whole group—seek to improve the overall improvement test and ensure that EDPs deliver significant improvements. I echo the opening the remarks from the noble Baroness, Lady Grender, and welcome the letter this morning and the amendments put forward previously. That demonstrates movement.

I am afraid I will deviate a little. I do not think it has been incredible or extraordinary. I am glad that the Ministers—as I always say, my two favourite Ministers —have their doors open for us, though they may regret making that promise, as I have some concerns still with this. It is not just what has been expressed in this Chamber; it goes beyond this Chamber, on all sides of the debate, from ecologists and conservationists to developers, lawyers and so-called yimbys.

To turn to the specific amendments, Amendment 286 intends to strengthen the overall improvement test, and I welcome Amendment 286A from the Government, which seeks to do this. However, there are still questions. We hear that it is up to the Secretary of State for Defra and their judgment, ahead of any evidence to the contrary. Amendment 300 is related, and seeks to ensure that significant, measurable improvements to nature are achieved by the EDP. While I recognise and welcome what the Government have sought to do by putting in place back-up measures, what is the baseline evidence that the Secretary of State for Defra is looking at when making that judgment? It sounds like this is a recent development, but what are the so-called good reasons that it may fall outside the remit of the Secretary of State for Defra? If, hypothetically, it is just the Secretary of State for Defra—to park the “good reasons” wording—is it envisaged that that would be done in consultation with other departments, such as MHCLG or even HMT?

Overall, it is important that we put in checks and balances, and these amendments seek to do that. They would not wreck the Bill but seek to ensure the improvements that we all, including the Government, want. They would, I hope, ensure that development continues.

[Lord Lansley (Con)]

My Lords, I will speak to my Amendment 289. Before I do so, I am pleased to follow my noble friend Lord Gascoigne, as he came to what I think is the nub of this group and what the question really is. In my mind, it is this: are we content with the Government’s amendment, which changes the overall improvement test so that the wording is “materially outweigh”, or do we want it to be, as in the amendment from my noble friend and others, significant and measurable? As it happens, I agree with my noble friend and others that “measurably” and “materially” probably have meanings that are alike, but “significantly” should tell us something about the nature of the guidance.

However, we need to think very carefully about putting in “significantly”, because there will be material improvements that are not regarded as significant. Would that mean that there would be environmental delivery plans that could not be made because they would not pass the overall improvement test, even where they would lead to a material improvement? We need to think about this carefully. There is no simple way to use particular words in legislation. They have their plain meaning, and if we were to say “significantly and measurably”, we mean that there is something beyond measurable that is significant. The guidance would need to say that. I raise this point because, if I were looking for the plain meaning, “materially” helps us a lot because it shows that there must be something where you can literally distinguish between the present situation and the future situation.

On Secretaries of State, I am confused. I always thought that, conventionally, we just put “the Secretary of State” into legislation. As a former civil servant, I remember people who sat in the same office, behind the same desk, working for Secretaries of State whose titles and departmental boundaries regularly changed. Therefore, trying to specify the Secretary of State for anything in legislation is a mistake—you just put in “the Secretary of State” and work out which one it is subsequently.

My Amendment 289 is about the conservation measures that are identified but not expected to be needed. This is quite interesting because, if they have been identified but are not needed to secure the overall improvement test, they wait there, as it were, until we reach the point at which the Secretary of State is making the decision.

If the Secretary of State determines that the overall improvement test has been met but in doing so has had to take into account conservation measures that were not expected to be needed, as referred to in Clause 55(5), my amendment would require that determination to make it clear that those conservation measures have been added, just so there is transparency and clarity. Of course, that flows into what is required in terms of the levy and the obligations that have to be met out of the nature restoration fund.

12:15

[Earl Russell (LD)]

My Lords, I rise briefly to speak to my Amendment 246 in this group on strengthening the NRF model and, most importantly, on the overall improvement test for environmental delivery plans under Clause 55.

This is a really interesting amendment, and I welcome the speech the noble Lord has just made. We recognise the amendments that the Government have made, but judging by the size and the number of them, and the uniformity of purpose across the amendments and across political parties, I think it is fair to say that concerns remain and that many Members are still looking for further reassurance and guidance from the Government on these matters.

My amendment makes it clear that the conservation measures must not merely mitigate or offset environmental harm but significantly and measurably outweigh it. That is important, because that is about delivering a genuine net gain on the conservation status of our natural heritage. Against that there are two things. First, we have the new policies and plans the Government have put forward. There is a background worry about the disregard for nature and the dangers inherent in some of the Government’s plans, but there is also a worry that the bar is too low and that too often in the past we have seen, with the best will, government intentions and legislation ultimately failing to deliver what they promise, particularly for nature.

It is therefore important to put in those measures, and other Members have picked up on them as well. It gives clarity to developers and those involved that they need to do something more than merely replace. The amendment would enshrine in law a clear principle that any harm caused by development must be more than compensated by concrete improvements. As my noble friend Lady Grender said, that aligns with the Government’s own biodiversity and net gain targets and sets robust, measurable standards.

We are all aware that we are already, famously, one of the most nature-deprived countries in the world and the few precious sites we have left are often not properly looked after and maintained. They are very disparate and very precious. Organisations and Members across the House have raised these issues, so while I welcome “materially outweigh” that the Government have put forward, there is a need to go further. I hope we can have further conversations on this area. These matters are important.

I support most of the amendments in this group. Again, what is important is the sense in this House that on these matters we seek reassurance.

[Lord Cromwell (CB)]

My Lords, this is my first intervention today and, of course, I am speaking personally. I wholeheartedly support what the Government Whip said about this being Committee stage and how it should be conducted, but this is a big Bill and it needs proper scrutiny. As the Minister has told us today, there are lots of things still to clarify and many questions still to be answered. Some speakers may need reining in, and I am sure the House will support the Whips when they attempt to do that, but I put it on record that I thought the crude attack yesterday in Oral Questions was inappropriate and unhelpful.

I support most of the amendments in this group, particularly Amendments 286 and 300 and others that have been raised such as those by the noble Baroness, Lady Grender, a few moments ago. These all seek to introduce some quantification, comparison and accountability into the EDP process. There will always be a temptation for implementing bodies, be it Natural England or those that it subcontracts, to introduce subjectivity—or, shall we say, optimism—into their results and reporting. Openness with data and debate will be essential to enable candour, challenge and particularly third-party professional scrutiny. EDPs are a new adventure, and lessons will need to be learned early and fully. I therefore support, as Amendment 300 puts it,

“a high degree of certainty based on an objective assessment”.

I also support Amendment 264 in this group from the noble Earl, Lord Caithness, and, to save time, Amendment 275 in the next group from the noble Earl, Lord Russell. Both seek to introduce some discipline and accountability via mitigation hierarchy and a stepped approach.

Finally, I have two related questions for the Minister. Will there be an independent audit process of Natural England and EDPs—not just of their finances but of the outcomes and results? If so, who will select these auditors and evaluators?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to Amendment 290 in my name, which was tabled as Amendment 119 in the other place by my honourable friend Ellie Chowns. I agree with the noble Earl, Lord Russell, that the noble Lord, Lord Lansley, has clearly identified where this group has taken us, and we have heard powerful expositions from the noble Baroness, Lady Grender, and the noble Lord, Lord Gascoigne.

This amendment specifically addresses European sites, European marine sites, European offshore marine sites and Ramsar sites, so we are talking about the overall improvement test, but in a limited subset. Again, we are talking about the nature of the overall improvement test.

These sites are, of course, hugely precious and terribly important, and Ramsar sites are described as internationally important places. Amendment 290 says that the Secretary of State has to be

“satisfied that there would be no adverse effect on the integrity of the relevant site”.

That is part 1 of the test. Paragraphs (ii) and (iii) state some offsetting allowances if there is no alternative and if appropriate measures are taken, but the amendment sets a very high standard for these terribly important places, which is crucial for them.

I note that in Monday’s debate, the noble Baroness, Lady Hayman, talked about how, under Clause 89, Ramsar sites were previously protected by guidance rather than legislation. This is indeed legislation, but if the test is not sufficiently strong then it is not any kind of protection at all. Also on Monday, the noble Baroness said that SSSIs have protection under the Wildlife and Countryside Act. I have not had time to really absorb what this morning’s letter says. It refers to that protection, but I would be interested to hear from the Minister on how that interacts with the changes that the Government have made and how Clause 55 works.

It is worth focusing for a second on what we are talking about. When I think of Ramsar, I always think of Rutland Water. I am sure that many noble Lords have visited it and seen the amazing birds at that site—I am looking at the noble Lord, Lord Randall. I also think of the Inner Thames Marshes SSSI, which is part of the Rainham Marshes Nature Reserve. I think of that because I was there in 2018 on Hen Harrier Day, when we had the wonderful and amazing pleasure of a marsh harrier swooping over to inspect our event for defending their cousins. I can remember the sense of wonder and amazement in the crowd, many of whom were local people. It is important to stress how important those SSSIs are to nature but also to local communities. We might think, “That will always be all right. That will always be protected”, but in the 1990s, the site was a candidate location for a Universal theme park, which, happily, was not built.

[Baroness Coffey (Con)]

My Lords, while the top twitcher in the House of Lords is undoubtedly my noble friend Lord Randall of Uxbridge—although there may be other candidates, I am prepared to admit —I live near the Minsmere Nature Reserve, so what the noble Baroness, Lady Bennett of Manor Castle, referred to about marsh harriers is truly extraordinary. I tend to see them in close proximity to Sizewell, which shows that there is an element of how we can all try to live together in that regard.

Amendment 244 gets to the kernel of the issue that we are addressing with the overall significant improvement test; I strongly support the noble Baroness’s amendment. Other noble Lords have made important points, including those made by my noble friend Lord Gascoigne.

The Government’s amendment is very cleverly written. There was a legal case with the last Administration, where ClientEarth, Friends of the Earth and the Good Law Project managed to find that the then Government had an unlawful climate change action plan, and they had to be pushed back on that. That is the element of hope value—not in terms of land, but in hoping that the EDP is, in effect, good enough. Assuming that everything will work was not good enough in that case.

If this provision goes into primary legislation in the way it is now, without further consideration of some of the other amendments that have been tabled by noble Lords, that will give the Government, frankly, a very good “get out of jail” card, because it is primary legislation and the courts will not be able to override it on the basis of the criteria being set out today. On Report, we should come back and consider with all noble Lords who have looked at this carefully how we try to make watertight what we want to do with the significant improvement test.

I will come back to the whole debate about what a Secretary of State is in the Bill, because I have tabled an appropriate amendment, which will be considered in a later group—I think in group 19 or 20—that will be started by the noble Baroness, Lady Young of Old Scone. There is something around this whole area that we are getting into—I am not going to stray into the mitigation hierarchy—that is about the environmental principles public duty that applies to Ministers. It does not apply to arm’s-length bodies; it applies to any policy considering legislation. It applies to any strategies and to any framework. But, critically, it does not apply in itself to any planning application consideration. So that is why we need to make sure that we get this bit of the Bill right.

As far as I am aware, although on GOV.UK it says that the environmental principles policy statement was under the last Administration, it should still be in force. I would like confirmation from the Minister that that is still the case. I point out to her that if it is not in force, the Government would be acting in an unlawful way. So in consideration of this, there may be further questions coming, whether through this or other legal routes, specifically about how, in constructing Part 3 of the Bill, the environmental principles policy has been applied to achieve the particular outcome that is desired and, potentially, about other aspects of how it is complying with the Environment Act in its own right.

It is worth us having some careful consideration before the next stage on what we all want the outcome to be. I am confident that the Government want, despite a lot of the speeches and rhetoric, to make sure that we have nature thriving.

[Lord Roborough (Con)]

My Lords, this group of amendments is aimed at strengthening the natural recovery framework model and addressing the overall improvement test. I do not intend to take up more time than is necessary, so I will not address each amendment in this group individually. However, I will speak to my Amendment 291, which stands also in the name of my noble friend Lord Blencathra.

Amendment 291 seeks to provide a power for the Secretary of State to reject an environmental delivery plan where they consider it is not in the public interest. We believe that this is a crucial safeguard. While we recognise the need for local responsibility and innovation within the NRF model, it is important that national priorities and the wider public good remain central. This amendment seeks to ensure that where an EDP does not sufficiently deliver the environmental improvements that are expected, or where it conflicts with other essential national interests, the Secretary of State can act decisively. It seeks to provide a necessary balance between local ambition and national accountability. While we are opposed to the entire EDP bureaucratic scheme, if the Government insist on pursuing it, it must be meaningful and measurable. The framework must be rooted in real outcomes, not vague intentions.

12:30

Turning to the broader concerns raised by this group of amendments, we recognise the need to toughen up the so-called overall improvement test. As it stands, it is relatively meaningless and entirely a matter of opinion. It is simply not good enough. There are several amendments in this group that would make the test more evidence-based. We support the intention behind them. The environmental NGO objectors to the Government’s proposals are calling for an objective scientific test. They are not asking for delays or unnecessary costs—quite the opposite. If they are to go ahead, a minimum requirement is for clarity, evidence and objectivity.

We will turn later today to amendments, which I support, offering to increase this scientific rigour. The test must be rigorous and meaningful. It is not enough to rely on process. We must be confident of the outcomes, and it is vital that any harm to the environment is more than simply offset. There must be a demonstrable and measurable net gain that the public and stakeholders can trust. For these reasons, we support the sentiments in the amendments in the names of my noble friends Lord Caithness and Lord Randall, among others in this group. We on these Benches welcome the clarification from the Minister about the responsible Secretary of State. I am sure that we will turn in later groups to exactly when it will go to other departments for clarification.

If we are to build public confidence in this framework, the results must be visible and robust. This is not merely about regulatory compliance. These amendments seek to ensure the delivery of lasting improvements to our natural environment.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)]

My Lords, this group includes government amendments to the overall improvement test that are part of our comprehensive package of amendments to ensure that everyone can have confidence that the nature restoration fund will deliver the improved outcomes for nature that are at the heart of this model and which I know that many noble Lords fully support. The Government have always been clear that the overall improvement test is one of the key environmental safeguards in the new system. As such, it is vital that there is confidence in its operation.

Our amendments remove any risk of ambiguity about the test’s operation by making it clear that the Secretary of State can approve an EDP only where the effect of the conservation measures will materially outweigh the negative effect of development on the conservation status of each identified environmental feature. This provides further assurance for communities and developers that measures will not only be delivered but that they will lead to a material improvement for the relevant environmental feature. The noble Baroness, Lady Coffey, referred to the government amendments as being “cleverly written”. I thank her for those comments on behalf of our civil servants. I am very grateful for the intellectual capacity of our civil servants.

To further support communities and to assist the Secretary of State when deciding whether to approve an EDP, government Amendment 256B adds a requirement for Natural England to set out its view on how the conservation measures will enable the EDP to pass the overall improvement test. The amendments also make a series of minor legislative fixes that are necessary for the correct operation of the legislation following the substantive government amendments. These are important clarifications that put beyond doubt how the overall improvement test will operate.

Turning to the non-government amendments, I welcome the comments from the noble Baroness, Lady Grender, about the importance of providing clarity in the planning system. That benefits not only developers but the communities and planners who have to operate the system. Many of the non-government amendments relate to the overall improvement test; for example, seeking to insert words such as “significant” to increase the amount by which the positive impacts of conservation measures must outweigh the negative impacts of development.

I suggest to noble Lords that a material improvement, as required by the government amendment, is more appropriate. It captures the need to secure improvement without putting an undue burden on the developer to contribute significantly more than their fair share to address the impact of development. Similarly, replacing the word “outweigh” with “demonstrate a net gain”, as proposed by Amendment 288, tabled by the noble Earl, Lord Caithness, risks drawing comparisons to a different and unrelated planning policy, the biodiversity net gain policy.

Amendment 289, tabled by the noble Lord, Lord Lansley, would introduce a duty on the Secretary of State to specify whether an EDP relies on back-up conservation measures that are not expected to be used to pass the overall improvement test. I seek to assure the noble Lord that EDPs will always need to be capable of passing the test without relying on back-up measures, as back-up measures are, by definition, those that are not expected to be needed. With this explanation, I hope that the noble Lord agrees that these amendments demonstrate the Government’s commitment to getting this right. We hope that, with these amendments, stakeholders and parliamentarians will work with the Government as we shift our focus to on-the-ground delivery—driving nature recovery, while supporting the delivery of the homes and infra- structure that we need.

Amendment 285AA, tabled by noble friend Lady Young, would amend the overall improvement test and remove the consideration of the Secretary of State from the test. The overall improvement test is inherently forward-looking, given that an EDP may be in place for up to 10 years in order to deliver the necessary conservation measures to secure the required improvement in the conservation status of the relevant environmental feature. When deciding on whether to make an EDP, the Secretary of State will have before them: the EDP itself, for which the best available scientific evidence is used; the view of Natural England as to whether the conservation measures are sufficient to meet the overall improvement test; and the responses from the public consultation. Armed with this information and with the power to request further information, the Secretary of State will be able to make a reasoned decision as to whether to make an EDP. I point out to the noble Lord, Lord Gascoigne, that that process already includes consultation. Consultation is part of the EDP process.

We note that none of us has a crystal ball—it would be lovely if we did, as then we could probably go 80 years ahead. That is why the Bill includes a number of safeguards to ensure that the overall improvement test will be met. I know that this will have been touched on previously, but it is worth restating the important role that ongoing monitoring will play in ensuring conservation measures perform as expected and, if they do not, the Government’s amendment requires that back-up conservation measures will be deployed. If, despite all these safeguards, the EDP falls short of the expected outcome, it will be the responsibility of the Secretary of State to take forward any remedial action to make sure that the overall improvement is delivered.

It is also worth highlighting the government amendments requiring Natural England to set out the proposed sequencing of measures against the scale of development under the EDP. As well as the clarification brought, both Natural England and the Secretary of State will deploy the best available scientific evidence throughout the EDP process. Removing the consideration of the Secretary of State from the overall improvement test, as proposed by this amendment, would require EDPs to replicate the site-by-site approach, which simply is not appropriate or necessary under this new strategic model with the aforementioned safeguards in place.

The noble Lord, Lord Lansley, referred to the comments about the Secretary of State this morning. He is quite right to say that it is not specified in the Bill. I do not believe that any Bill ever specifies which Secretary of State, because—as we all know—things can change. We hope that, by providing some clarity to the Committee this morning, this will help Members’ understanding of where we are. I hope that, with that explanation, my noble friend feels able not to press her amendment.

I turn to the amendments tabled by the noble Lord, Lord Randall, to which he spoke with incredible clarity and briefness, for which I thank him. The amendments propose to replace the overall improvement test with an evidence-based improvement test, as well as introducing further requirements connected to this revised test. The Government are in complete agreement with the noble Lord, but the quality of evidence is paramount when the Secretary of State is considering whether an EDP should be made. I hope, therefore, that the noble Lord welcomes the government amendments, as I think that they speak to what is at the heart of his amendments.

As I have set out, the government amendments to the overall improvement test remove any risk of ambiguity by making it clear that the Secretary of State can approve an EDP only where the effect of the conservation measures will materially outweigh the negative effect of development on the conservation status of each identified environmental feature. The Secretary of State would be required to take into account that best scientific evidence when undertaking all activities related to Part 3, including when considering the overall improvement test.

However, it must be recognised that the Secretary of State will make their determination before any EDP is in effect and conservation measures are in place. While EDPs will be based on the best available scientific evidence, there is an acknowledged need to consider the as yet unknown impact of these measures. This is inherent in taking the strategic, longer-term approach and it is why we have included provision for back-up measures to be deployed if monitoring shows that the primary conservation measures are failing to deliver as expected. This provision provides assurance that, were the primary conservation measures not to perform as expected, further measures would be deployed to ensure that the EDP met the overall improvement test.

With these amendments, we are confident that the overall improvement test is fit for purpose, so would not want to amend the test in the way proposed by these amendments. In addition, the associated amendment requiring the Secretary of State to carry out further consultation risks adding further process because, as I said, those bodies will already have had an opportunity to express their views. Moreover, Natural England is required to include in the EDP its views as to how the measures proposed enable the EDP to meet the overall improvement test. With these explanations, I hope that noble Lords will feel able not to press their amendments.

Amendment 290, tabled by the noble Baroness, Lady Bennett, would amend the overall improvement test and reintroduce much of the existing habitats regulations. It might be helpful to quote from the letter. I know that it only went out this morning. My noble friend Lady Hayman and I tried to get it out earlier, but your Lordships know how these things work. I repeat these paragraphs from the letter:

“We recognise that many Noble Lords have expressed concerns related to the application of the NRF model to irreplaceable habitats and rare species. We wish to be absolutely clear that both the intent and legal effect of the overall improvement test, and associated safeguards, is to prevent the inappropriate use of EDPs where an environmental feature would suffer irreversible harm or harm that could not be outweighed by the EDP end date. This means that an EDP could not allow action to be taken that resulted in loss or irreparable harm to an irreplaceable habitat, as this would by definition be incapable of passing the overall improvement test.


We also note that the National Planning Policy Framework … includes a strong presumption against permitting development which would harm irreplaceable habitats. These protections in the NPPF are not changing.”


Before turning to the individual elements of the amendment, I remind noble Lords that the current system is, at best, maintaining an unacceptable environmental status quo. That is why we are proposing the NRF, which provides an alternative way to discharge environmental obligations that moves us from simply offsetting impact to actually improving the conservation status of the relevant environmental feature. In providing an alternative, the NRF must establish a new framework for decision-making that aligns with this strategic, outcomes-focused approach. This framework has been the subject of much debate, but we are confident that, with the proposed government amendments, this will deliver the better environmental outcomes that we all so desperately need. Reintroducing elements of the existing system to this new model fails to recognise the necessary shift in approach to secure better outcomes. We will, of course, discuss the mitigation hierarchy at length in subsequent groupings, so I hope that, with those explanations and the discussion still to come, the noble Baroness is content not to press her amendment.

Amendment 291, tabled by the noble Lords, Lord Roborough and Lord Blencathra, would allow the Secretary of State to withhold approval from an EDP for reasons of public interest. I am happy to be able to reassure the noble Lords that there is nothing to compel the Secretary of State to approve an EDP and it will therefore be within their power to reject an EDP for any reason, including for reasons of public interest, as expressed in this amendment. I hope, therefore, that the noble Lords feel able not to press their amendment.

I move to Amendment 264, tabled by the noble Earl, Lord Caithness, which would introduce three tests that an EDP must specify and meet to avoid legal challenge. The first test relates to appropriate consultation; the Bill already contains specific measures governing consultation, so the amendment would apply to the pre-consultation period required by the noble Lord’s previous amendment.

12:45

The second proposed test pertains to the cost-effectiveness of conservation measures. The Secretary of State is already required to consider the economic viability of development when making regulations that will govern the nature restoration levy. The Government have been clear that the aggregate cost to developers should be no greater than the status quo to ensure that using an EDP is an attractive option to developers. Since the vast majority of EDPs will be optional for developers to use, if the levy is set too high, they will simply opt not to use the EDP.

The third test is that the EDP must follow the mitigation hierarchy. We will be turning to the mitigation hierarchy in the next group, so I will simply state here that the mitigation hierarchy is expressed through this model, with Government amendments underlining the continued role for the mitigation hierarchy in the design of EDPs, the ability of EDPs to avoid impacts, and the clarity that local conservation measures are preferred, unless there is a clearly articulated environmental basis to look further afield.

While the matters raised by the amendment are all-important considerations, I hope that noble Lords would agree that these matters are adequately dealt with elsewhere in the legislation. Introducing further legal tests that must be passed to avoid challenge would result in a significant potential cost and delay to EDPs. I hope that the noble Earl will not press Amendment 264.

I move on to Amendment 298A, which was also tabled by the noble Earl, Lord Caithness, which seeks out a new route for legal challenge of an EDP, where it fails to meet the tests set out in Amendment 264. This would allow complainants to challenge an EDP without the statutory time limit given to other challenges under Clause 65. When read with Amendment 264, this route of challenge would be available only to persons and organisations that have expressed an interest in delivering conservation measures. This is likely to result in more legal challenges to an EDP outside the normal time limits for such challenges, resulting in uncertainty that an EDP can be relied on. That is the uncertainty that the Bill is seeking to remove, and I hope that noble Lords will agree that the judicial review procedure, alongside oversight from the OEP of individual EDPs, will be sufficient for the purpose of holding the Government and Natural England to account.

The noble Lord, Lord Cromwell, raised the issue of an independent audit process for Natural England, which will be subject to audit, as all public bodies are. I will revert back to him on the issue of who selects the auditor. I do not have the answer to that in front of me, but I will come back to him on that.

[Lord Cromwell (CB)]

All the amendments in this group are basically trying to answer the question: what would success look like, and how do we measure it? I guess it is the old consultants’ cliché, I guess. The point I was concerned about was not just a financial audit but measuring the performance of EDPs. Environmental change is fantastically difficult and subjective to measure, so is there a commitment to use external third-party expertise to evaluate their success, or will Natural England mark its own homework?

[Baroness Taylor of Stevenage (Lab)]

As if by magic, I have the answer for who audits Natural England, so I can answer the noble Lord’s question. The accounts of Natural England are audited by the Comptroller and Auditor-General under the Natural Environment and Rural Communities Act 2006. It is the National Audit Office, so I hope that is helpful.

[Lord Cromwell (CB)]

That is helpful, and I am sure that it will look deeply into the financial performance, but I am worried about how the actual performance of the EDP will be measured.

[Baroness Taylor of Stevenage (Lab)]

I was just coming to that. The performance of EDPs will be monitored in the ways that have been set out. There will be oversight from the department and a process for monitoring the EDPs. It might be helpful if, between Committee and Report, the noble Baroness, Lady Hayman, and I can set out exactly how that process will work, and we will aim to do that.

The noble Baroness Coffey talked about the environmental principles policy statement, and I can confirm that the Bill must have regard to that statement, in line with the Environment Act 2021. With all those comments, I hope that noble Lords will not press their amendments.

[Lord Lansley (Con)]

My Lords, I wonder if I might just ask the Minister, after her helpful and interesting points, about the back-up conservation measures that are included in the EDP but are not expected to be needed. That being the case, can we have conversations about the calculation of the cost of the EDP, the amount of the levy, how the levy and the liabilities for the levy are to be determined and when they are to be paid? Can we talk about how that applies to back-up conservation measures? Clearly, developers do not want to be in a position of paying them, or expecting that they have to, then finding that they do not have to pay them.

[Baroness Taylor of Stevenage (Lab)]

I understand the point that the noble Lord is making. When a developer opts for an EDP, there will be a clear statement of the costs. But I think it would be useful to have a conversation between now and Report, so I am very happy to do that.

[The Earl of Caithness (Con)]

My Lords, I am grateful for the full reply that the noble Baroness has given. Can I ask her just to lift the lid a little bit on the timing of the public consultation? How long a time are the Government thinking of between the Secretary of State receiving an EDP and confirming or denying the EDP? How long is that public consultation going to be?

[Baroness Taylor of Stevenage (Lab)]

As the noble Earl will be aware, there are standard timings for government consultations, so we would employ those principles as set out in the government regulations for all consultations. If the noble Earl is not familiar with those, I can certainly send him the details.

[Baroness Grender (LD)]

My Lords, I thank the noble Baronesses for their responses on this. I thank them also for continuing to have an open door. I think that the whole Committee is conveying a huge ambition to work with the Government to get this over the line. I still have concerns that “material improvement” will be interpreted by some as a low common denominator, but we will go away, study the letter received this morning and the words used today, and I hope continue to meet between now and Report. I think that what a lot of Members who have spoken just now are trying to get towards is practical measures that can provide a level of specificity so there is clarity, so that examples that I raised in my opening speech—of much-promised and not-delivered measures—do not occur again. That is what we are striving to achieve here. With that, I beg to ask leave to withdraw the amendment.

Amendment 244 withdrawn.

Amendment 244A not moved.

Amendment 245

Moved by

[Lord Gascoigne]

245: Clause 55, page 92, line 7, at end insert—
“(c) comply with the principles of the mitigation hierarchy.”

[Lord Gascoigne (Con)]

My Lords, I am delighted to kick-start this group, not least after the great discussion we just had on the previous group. Equally, I am delighted and honoured to have the support of the noble Baronesses, Lady Young of Old Scone and Lady Parminter, for my amendment.

Amendment 245, which is in my name, seeks to specifically set out the importance of the mitigation hierarchy, which has reared its head on various occasions throughout the entire passage of the Bill. Most should already know what that means but, in short, it is the well-established common principle in development that there are a series of steps to go through on a site when it comes to the environment. These are: first, to avoid, then to minimise, then to restore, and then to offset.

As we just touched on, the problem with EDPs in this Bill is that we simply fast-track to compensation. In effect, developers can ignore the first three stages and pay into some pot to offset whatever it is they are doing. Here, the only obligation is the payment; your role is then done. I am not normally like this, but that is a pretty dystopian view. I know that, with many, that will not happen, and some will seek to follow those steps when working on development, even if the law does not stipulate it, but that would not be enforced and would be down to good will.

Amendment 245 would fix that and insert the mitigation hierarchy as part of the EDP’s conservation measures. Indeed, my amendment would be inserted into the subsection that explicitly states:

“An EDP must set out the measures (‘conservation measures’) that are to be taken by, or on behalf of, Natural England, under the EDP”.


It may be argued that it is not needed because of the mitigation hierarchy. The Minister is not in her place, but she was just saying at the Dispatch Box that the mitigation hierarchy is already implicit and that it is common practice. I have the highest regard for the Minister, who I assume will be responding, and I am sure she will say at the end of this debate that, while the Government support the principle and the arguments behind what I am seeking to do, it is not needed because it is in the NPPF. However, if it is not explicit in the Bill, it leaves the door open to regression legally.

I know that some see the NPPF more as planning guidance than law, and that the NPPF is general rather than specific. An EDP is entirely novel, hence why we are rightly having this huge debate; it creates a new regime and, as a result, it is not in the NPPF yet. Despite what the Minister just said, as it is new, it is right that it should feature in the Bill because it is creating a whole new aspect of planning law. It would ensure that the Bill and the NPPF align coherently. That should be explicit in the Bill.

It is not just me who thinks that the mitigation hierarchy should feature; in the previous group, the Government set out some amendments themselves. If you look at the guidance when these amendments were set out, the Government said:

“These changes underline the continued role for the mitigation hierarchy in the design of EDPs, ensuring that local conservation measures are preferred unless there is a clearly articulated environmental basis to look further afield”.


I think that is pretty much what the Minister said in concluding the previous group so, when those amendments came down, I was relieved. As I said on the previous group, I am grateful that the Government have put some amendments down. When I kept hearing that the mitigation hierarchy is going to be maintained, I thought that that was great; it is a good step. However, when I look at the list of amendments that we are debating in this group, I am afraid that I cannot find exactly where the Government say that the mitigation hierarchy will take place. This amendment seeks to fix that and to put in what the Government say they support.

It feels like we were debating this only yesterday. It was literally yesterday, at 1 am, when we were talking specifically about species. It may well be that, even if there are no species to be protected on a site, we can all agree that it is right that any development seeks to minimise and avoid as much damage as possible. That in itself is conservation.

There are a number of similar amendments in this group from other noble Lords, all of which seek to address the same issue of putting specific references in, and I support them, especially Amendment 301 in the name of the noble Baroness, Lady Willis of Summertown, to which I have added my name. It seeks to ensure that the mitigation hierarchy applies, while allowing flexibility for Natural England. If we take the group as a whole, these amendments do not stop the EDP process and they are not political games, certainly not from me. It does what the Government say they support. I hope that it will feature at some stage as the result of these conversations, because it is not in the Bill at the minute. I hope that the Minister recognises that this improves what the Government seek and makes the EDP a win-win for nature and development. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, I thank the noble Baronesses, Lady Parminter and Lady Willis, for supporting Amendment 256ZA which I have tabled. I support Amendment 245 in the name of the noble Lord, Lord Gascoigne. His eloquent promotion of it means that I do not need to explain what the mitigation hierarchy is all about. However, it is an important principle in conservation, and it has come to the fore in the biodiversity net gain policy. In the case of this Bill, it would require a developer or Natural England preparing an EDP to look first at how to avoid damage to natural features, or, if avoidance of damage is not possible, to mitigate—that is, reduce—the impact, or, as a last resort only, to provide compensation habitat for the damage.

Under the draft Bill, Natural England could be, subtly or otherwise, pressurised into writing an EDP that jumps straight to damage and compensation. That might be the lowest-cost option and therefore to be desired by developers and also perhaps by the Government in pursuit of growth, even where it would have been feasible for Natural England or a developer to implement measures to safeguard the original protected habitat. I know that the Minister does not like the Bill’s nickname of “cash to trash” but, if it is not to be portrayed in that way, I believe that it will need to be amended to encourage developers and Natural England to comply with the mitigation hierarchy.

13:00

In responding to the previous group, as has been said, the Minister—the noble Baroness, Lady Taylor—referred to the mitigation hierarchy, but also said that a change of direction is needed to achieve more effective conservation action, perhaps distant from the site of an existing environmental feature. I have heard it said before that we need a change of direction or change of heart in our approach to conservation, if we are going to reverse the decline of species in habitats, and that strategic landscape-scale action is what is required, as recommended by Sir John Lawton in his report: bigger sites, better sites and more joined-up sites.

But Lawton did not actually see these as an alternative to in-site conservation; he saw them as an addition to that. I think it is true that existing protected habitats are almost always more valuable than newly created habitats, so I hope that we can find a middle course that allows these landscape-scale strategic sites to be developed but does not, in the process, unnecessarily—if it can be otherwise—damage environmental features that could be maintained and protected under the mitigation hierarchy.

I am sure that the mitigation hierarchy, as it has been subject to a large number of amendments already, will be an issue that we return to on Report. It would be useful if the Minister could give the Committee some assurances about the position that she sees for the mitigation hierarchy and the Bill as currently formulated.

[Earl Russell (LD)]

My Lords, I will speak to my two amendments in this group on the mitigation hierarchy—Amendments 251 and 275. I do not want to speak too long on this, in the interests of the Committee, but I think that this and the last group are the two key issues remaining in the Bill. To my mind, the Government have not made enough of a solid argument for removing the mitigation hierarchy system—a tried and tested system that works and can be relied upon. No doubt there are inherent risks with changing this new system, even with the best will in the world. Similar to the last group, I generally support all of the amendments in this group and I welcome them. However, despite the reassurances given by Ministers, there is still an air of concern around these issues across the Committee.

To my mind, the Government have not made the required level of argument as to why they need to remove the mitigation hierarchy. I want to look at that specifically in relation to housing, because—and I raised this in relation to the stand part group we had the other night—all the energy policy statements have recently been updated. The Overarching National Policy Statement for Energy—EN-1—has been updated and we have had new policies on renewables, new policies on the grid and new policies on nuclear under this Government. They all have the mitigation hierarchy at their core, and they are actually really good, solid documents. So, if this Government are able to deliver the energy transition with the mitigation hierarchy in place, why can the same Government not deliver new housing with it? It just does not make sense to me. That is something I will leave to be discussed.

My Amendment 251 seeks to ensure that Natural England accepts requests only when developers have properly applied the mitigation hierarchy and justifies projects due to there being no alternative solutions and no incorporated public interest grounds, especially for sensitive habitats. We believe that this basic safeguard is needed to embed our core principles of environmental protection in planning into the Bill.

My Amendment 275 seeks to intervene in Clause 58 of the Bill and is designed to inject rigour, accountability and genuine environmental protection into the heart of the new planning system. I am pleased that this amendment has the backing of the Wildlife Trusts. It mandates that Natural England, as a delivery body, must not only adhere to the mitigation hierarchy but demonstrate that any EDP will result in significant environmental improvement

“at an ecologically appropriate scale”.

Those words are important. Other Members have raised issues about the mitigation hierarchy. I recognise the commitments the Government have made, but I think there is still a need for reassurance on these matters.

[Baroness Parminter (LD)]

My Lords, I have been pleased to sign a number of amendments in this group, because the issue of the mitigation hierarchy is a big outstanding area of concern for those of us who want EDPs to be part of packages in the future but are concerned about it. The noble Baroness, Lady Young, and the noble Lord, Lord Gascoigne, have made the case, as has my noble friend Lord Russell, for our concern that the mitigation hierarchy does not remain for EDPs but does for other planning obligations.

I have one question for the Minister. Both Ministers provided a letter today that said that,

“an EDP can include planning conditions to avoid or reduce impacts on the site … before they can access the benefits of an EDP”.

I can see that that is an attempt to soften concerns that the mitigation hierarchy does not apply for an EDP, but I think the Committee needs quite a bit more information in the Minister’s summing up, and certainly before Report, about what exactly that means. I note that the letter says that an EDP “can”, not that an EDP “must”. I do not see how it is going to work.

The helpful chart drawn up by the noble Baroness, Lady Willis, and the noble Lord, Lord Krebs, makes it clear that, for an EDP, there is absolutely no compulsion for an assessment of the environmental impacts by a developer of the site that they are going to develop before they can go straight to an EDP. How can you have planning conditions for a site where you do not even have an obligation to identify what the environmental impacts are?

We have heard from meetings with civil servants that they have been drawing up plans for two EDPs on nutrient neutrality and newts, so they must have some idea of what the type of planning conditions might be. I would like a bit more information about how the planning condition process might work and what it might be in order to give noble Lords more information before we get to Report. I have to say that I feel that being able to move straight to pass “Go” and avoid the mitigation hierarchy is a massive hole in this new system. As my noble friend Lord Russell has said, other parts of government have managed to find ways to incorporate it in equally important areas of infra- structure development.

[Baroness Coffey (Con)]

My Lords, I thank the Minister for confirming earlier that the environmental principles policy is still in place. That matters in this particular group in terms of the mitigation hierarchy. When the Bill came through, the OEP expressed significant concern about the weakening of the mitigation hierarchy. I am not aware of its opinion on subsequent government amendments in that regard, but, of the five principles set out in the Government’s policy statement, “prevention” is a key element and “Rectification at source” is another one of the five principles.

We are trying to make sure this is crystal clear in the Bill and locked in because of comments made by the Minister in the Commons about flexibility. It is fair to say that, frankly, Clause 66(3) completely sets aside the mitigation hierarchy; to use the phrase of the noble Baroness, Lady Young of Old Scone, it is cash for trash —basically, you can do what you like if you are prepared to pay for it. In that regard, it matters that the Government think again and put this in place in primary legislation. Despite that, Amendment 256ZA in particular is very useful where it talks about “reasonably practicable”. That is an element that, if necessary, can be tested in the courts in due course. But we need to correct this in this House, putting it very firmly instead of saying, as in the words of the Minister, “Our flexibility is fine”.

[Baroness Grender (LD)]

My Lords, Amendment 340 proposes a new clause after Clause 87. This amendment would enshrine clear duties on both the Secretary of State and Natural England to take all reasonable steps to avoid, prevent and reduce significant adverse environmental effects when exercising their functions under Part 3. It would require them to enhance biodiversity to safeguard designated sites—such as the European and Ramsar sites that we have heard mentioned in the previous group—except in exceptional cases, and to protect irreplaceable habitats such as ancient woodland and veteran trees.

I thank the noble Baroness, Lady Freeman, who has signed the amendment. She sends her apologies and says:

“This amendment provides a great opportunity for the Government to clarify the core commitments to existing nature protection that they have stated should remain in the Bill. This amendment is an essential clarification and strengthening of legal duties that already underpin environmental protections but risk being diluted under the new framework established by Part 3. While the Bill aims to streamline development and introduce strategic fund-based mechanisms for environmental management through both EDPs and the NRF, there have been legitimate concerns that existing protections might be weakened or circumvented”.

So this amendment does not obstruct development. It ensures that decision-makers uphold critical environmental principles consistently and transparently. It explicitly requires the Secretary of State and Natural England to take all reasonable steps to avoid causing significant harm, applying the fundamental mitigation hierarchy that we have already talked about and which prioritises avoidance first, minimisation second and compensation only as a last resort.

The amendment’s emphasis on enhancing biodiversity aligns directly with the Government’s own Environmental Principles Policy Statement, which guides all departments to embed environmental protection in their decision-making, and it places biodiversity improvement alongside harm avoidance as a clear statutory duty. Of particular importance is the protection afforded to irreplaceable habitats, as I have mentioned already. These are a unique and fragile ecosystem systems comprising just 2.5% of UK land yet supporting disproportionately rich biodiversity, and the NPPF rightly sets the loss of such habitats as a matter to be refused unless wholly exceptional reasons apply and compensatory measures are in place. Embedding this principle therefore in primary legislation strengthens the hand of conservation and local communities.

The amendment also correctly restricts where significant adverse effects on European and Ramsar sites may be permitted—only where justified by imperative reasons of overriding public importance—and where compensation will occur. This follows long-established environmental law and international obligations, and provides clarity. I look forward to hearing the Minister’s response.

13:15

[Lord Roborough (Con)]

My Lords, I shall start by introducing my Amendment 346DF and, in the interests of brevity, will avoid detailed comments on the other amendments in the group.

My amendment is, by its nature, probing. It would require the Secretary of State to report on the potential benefits of removing distance from the biodiversity metric when measuring the biodiversity value of registered off-site biodiversity gain under paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990. This is important because the current system rightly places a heavy weighting on proximity. My amendment does not necessarily fit so well in this group, but there was no sense in having a separate group for just one focused amendment with a specific request. It simply poses the question to the Government: if proximity carries limited weight in designing EDPs, why should it continue to carry so much weight in the BNG market? This risks handicapping the private market for these services versus EDPs.

Currently, developers pay far less for BNG and nutrient neutrality units when further afield than when local, which translates to lower prices per unit and lower incentives for landowners to develop BNG units. We on these Benches remain convinced that the proximity of the offsetting actions’ location to where the damage is being done remains an important principle, which we will defend. However, if the Government were to insist that this is not the case in the EDPs, this amendment would seek to protect the ability of private developers of BNG units to compete. There is an argument, which holds weight, that if mitigation actions cannot be done locally, further afield may be acceptable. But in that case, it holds that the choice should be made based on guidance and availability, not price.

I turn to the arguments raised in this group of amendments, which we support. We are proud of the work done in the Environment Act 2021 to enshrine the mitigation hierarchy in law through biodiversity net gain. It has taken some time to implement but now works better every day. Developers are increasingly comfortable with it. Supply of BNG units is increasing, providing valuable income to landowners and funding for environmental NGOs. Given that, it is hard to understand where the problem is in planning that Part 3 is trying to fix. Perhaps most importantly, nature restoration is already happening at increasing scale around the country through the current system. Why undermine it? By not protecting the mitigation hierarchy within the application to the nature restoration fund and the design of EDPs, the Bill continues to represent a regression in environmental law in this country. It also undermines the competitiveness of BNG developers in providing solutions for housing and infrastructure developers.

In conclusion, the amendments we have discussed today reflect a common desire to protect the mitigation hierarchy and ensure it is embedded into all aspects of the NRF and EDPs. I hope the Minister will support this and offer encouragement.

[Baroness Hayman of Ullock (Lab)]

I thank noble Lords for taking part in this debate on the mitigation hierarchy. I have listened carefully and very much recognise the concerns that are being raised. These amendments seek to add provisions that require Natural England and the Secretary of State to apply the mitigation hierarchy when considering whether to produce an EDP, and in its production and implementation. By introducing a more strategic approach to addressing the impact of development, the Bill deliberately provides an appropriate degree of flexibility to Natural England to design conservation measures to deliver improved outcomes for the environmental features that are subject to an EDP. The noble Lord, Lord Gascoigne, when he introduced his amendment, noted that the NPPF includes consideration of the mitigation hierarchy in respect of individual planning applications. I was not going to mention it, but because he did, I thought I had to.

As we have set out, the NRF is a strategic model. While I want to reassure noble Lords that the mitigation hierarchy lives in this model and is integral to the model we are trying to get across, it cannot be considered in the same way as an individual planning application. Again, I stress that the NPPF is a statutory model. You cannot just ignore it. It is part of the application process. So, we would expect Natural England to consider this throughout the process and use tools such as the ability to request planning conditions to avoid and reduce impact as key elements of an EDP. In preparing an EDP, Natural England will always be mindful of the benefits of avoiding impacts before they occur. Taking action locally which benefits the same protected feature that is being impacted by development will be the default under an EDP. This places a kind of ecological lock on the use of network measures, which can be used only in cases where it is clear that taking action elsewhere would be more beneficial to the environmental feature.

In addition, when making the EDP, the Secretary of State will have due regard to the environmental principles policy statement, in line with the Environment Act 2021. This will ensure that important principles, such as the precautionary principle and the rectification at source principle, are considered. Ultimately, the overall improvement test will require that each EDP demonstrates how the conservation measures will secure an environmental uplift that goes beyond the offsetting that is achieved under the current system.

Returning to Amendment 245, as I said, the principles are already incorporated into the existing provisions and further reinforced by the amendments we have tabled. As the noble Baroness, Lady Parminter, said, Natural England can request that planning conditions be imposed on development, ensuring that impacts are minimised. As I have explained, network measures can be implemented only when doing so would lead to greater improvement. The noble Baroness asked for future information. Let us get together before Report; I will get that information for her and share it with noble Lords.

Natural England will always consider the environmental principles when preparing an EDP, and the Secretary of State may make one only if it meets the overall improvement test. Therefore, the additional flexibility provided for by the nature restoration fund can be used only to deliver better outcomes for the environment.

I turn to Amendment 251 in the name of the noble Earl, Lord Russell, and Amendment 301 in the name of the noble Baroness, Lady Willis, who is not in her place. These amendments would require a developer to demonstrate that they have applied the mitigation hierarchy before Natural England can accept their request to use an EDP. The clear aim of the nature restoration fund is to deliver a win-win for both development and the environment. A fundamental element of delivering this is to reduce the amount of time and money spent on individual environmental assessments and refocus these efforts on strategic action to improve environmental outcomes at scale.

The EDP itself is required to consider the impact of relevant development on the environmental feature and propose appropriate measures to address and materially outweigh this impact. The plans will be underpinned by the best scientific evidence and will include actions to avoid impact, as well conservation measures to address and outweigh impact. As such, requiring developers to undertake individual assessments risks eroding the value of the EDP, adding costs to individual development, which we think would reduce the utility of relying on EDPs. Where an EDP is in place, the overall improvement test ensures that outcomes for the environment will be better than the existing system, so it is vital that we embrace the opportunity to streamline the process in order to deliver this win-win.

The noble Earl, Lord Russell, tabled Amendment 275, which seeks to require that Natural England may decide to prepare an EDP for a protected feature only if two conditions are met: first, that Natural England has followed the mitigation hierarchy; and secondly, that the EDP would contribute to a significant environmental improvement in the conservation status of the relevant environmental feature at an ecologically appropriate scale. I have just addressed the first condition, so I will focus on the second.

The existing provisions in the Bill already require the Secretary of State to consider whether the overall improvement test is met once a draft EDP has been prepared and presented. Requiring Natural England to consider that same test at an earlier stage would not be possible because neither the detail of the proposed conservation measures nor the environmental impact of the development it is intended to address would be known at that stage. We think that the correct point to apply the overall improvement test will be after the EDP is drafted, not before.

The amendment also proposes a modification to the overall improvement test to require that conservation measures significantly and measurably outweigh the environmental impact of development. This was addressed previously, so I will not repeat it here, except to say that the Bill requires that conservation measures must address the environmental impact of development and, additionally, contribute to an overall improvement in the conservation status. We have clarified that with the amendments we have tabled.

Turning to Amendment 256ZA, tabled by my noble friend Lady Young, the Government’s amendments to Part 3 make it clear that network measures may be taken forward only when Natural England can set out how the approach will make a greater contribution to the improvement of the conservation status of the feature than an on-site measure. We are clear that the flexibilities will not come at the expense of action to avoid impact, and the Bill provides powers to address such actions and secure that they are taken through the use of planning conditions. There is also the opportunity to scrutinise the proposed conservation measures, including actions proposed to avoid impact, during the consultation on each EDP. The Secretary of State will also have due regard to the environmental principles policy statement, and see that other important principles are considered.

Turning to Amendment 340, tabled by the noble Baroness, Lady Grender, the overall improvement test is central to the nature restoration fund. I have gone into some detail about how that is supposed to work, but the proposed requirement to apply the mitigation hierarchy rigidly would restrict an EDP’s ability to meet the overall improvement test strategically. As I said, an EDP cannot be made unless the Secretary of State is satisfied that it will meet this test. Any flexibility in applying the mitigation hierarchy should be seen through this lens. The nature restoration fund does in limited circumstances allow Natural England to propose conservation measures which benefit the environmental feature in a different location.

Turning to irreplaceable habitats, the Bill does not amend or disapply the NPPF. Therefore, the existing policies remain unchanged. An EDP could be applied to an irreplaceable habitat only where it was also a feature of a protected site. Even then, an EDP could not allow for the loss of irreplaceable habitats, as it would simply not be possible to satisfy the overall improvements test in these circumstances. Finally, it is not clear what the proposed requirement to consider enhancing biodiversity would add, as the Bill is clear that an overall improvement must be achieved in relation to the protected feature to which the EDP relates.

Finally, on Amendment 346DF, in the name of the noble Lord, Lord Roborough, we have recently concluded a consultation on improving the implementation of BNG for minor, medium and brownfield development. Among the options is a proposal to streamline the BNG metric process. We might be interested to pick this up and discuss it further, because the Government are currently considering their response, and we will be publishing our outcomes in due course. New legislation requiring government to lay a report on this matter is therefore not necessary at this stage, so I hope the noble Lord will withdraw his amendment.

This has been a really important debate. It has raised a number of issues which I am aware that noble Lords would like to discuss further, and this is something we should specifically pick up in discussions ahead of Report. With these explanations, I kindly ask noble Lords not to press their amendments.

[Lord Gascoigne (Con)]

I am grateful to all noble Lords who spoke to that group, not least the Minister. I apologise for incorrectly prejudging what I thought she would say—I obviously got it completely wrong, and I apologise.

The noble Earl, Lord Russell, got it right when he said that this group and the previous one are the nub of the problems with the EDP Part 3. I am not saying there are other things, but this goes to the heart of how we try and make the Bill a win-win for both development and nature. I do not want to dwell too long. I am grateful that the Minister said that we will come back to that. It is worth our coalescing and having another shot at it, if we may, but, with that, I beg leave to withdraw my amendment.

Amendment 245 withdrawn.

Amendment 245A

Moved by

[Baroness Hayman of Ullock]

245A: Clause 55, page 92, line 7, at end insert—
“(3A) An EDP must set out the anticipated sequencing of the implementation of the conservation measures by reference to the development to which the EDP applies.”Member's explanatory statement
This amendment would require Natural England to include in an EDP an indication of the sequencing of the conservation measures vis-a-vis the development.

[Baroness Hayman of Ullock (Lab)]

My Lords, this group has government and non-government amendments, so I will introduce the government amendments at this stage and then respond to further amendments at the end of the debate, once I have heard what people have to say.

The further government amendments speak directly to the matters raised by environmental groups and the Office for Environmental Protection, which, along with those in other groups, present a comprehensive package that addresses these issues, as well as picking up wider matters raised during parliamentary debates on how the nature restoration fund will operate.

Government Amendment 245A will require Natural England to set out the anticipated sequencing of conservation measures set against the development expected to come forward under the EDP. This amendment provides transparency as to when conservation measures are proposed to come forward, to address the impact of development. By including the proposed sequencing of conservation measures in the EDP, this will provide further assurance that EDPs will not lead to open-ended or irreversible impacts from development and will allow communities and developers to see how environmental benefits will be delivered over the EDP period.

Although back-up measures provide greater certainty of outcome, we also propose to reframe the duty on the Secretary of State to deliver remedial action in the unlikely event that the conservation measures and back-up conservation measures do not deliver as originally foreseen. Government Amendment 295A creates an explicit requirement for midpoint, endpoint and revocation reports to set out whether the EDP is still likely to pass, or has passed, the overall improvement test.

Should the endpoint report contain an assessment that the conservation measures are not likely to pass or have not passed the overall improvement test, the Secretary of State will be under a duty to take proportionate action to address any shortfall in environmental outcomes. These measures will need to be set out in a report containing a clear assessment of the effect the Secretary of State expects those actions to have. The Secretary of State will then also need to review the effect of these measures two years later.

These new reporting requirements will remove the need for Natural England to conduct an annual assessment of the effectiveness of all EDPs in force. That is further addressed by government Amendment 325 C. I hope that is informative for noble Lords and I look forward to responding to the rest of the debate.

13:30

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to my Amendment 258C, which seeks to ensure that EDPs are grounded in scientific evidence and on clear ecological baselines, so that they can be judged as genuinely delivering measurable environmental improvements. The Government’s proposed amendments are welcome as going some way, requiring Natural England to have regard to existing scientific evidence, but they are silent on what happens if there is not sufficient data or evidence. Perhaps the noble Baroness could say whether Natural England would at that point be required to collect new evidence to establish a baseline from which measures and outcomes would be judged.

This amendment would ensure that every EDP has a strong evidential foundation, so that the interventions can be judged on whether they are credible to make them defensible. I remind noble Lords that we are dealing in this circumstance with the most important and threatened environmental features in this country, which until now have been regarded as requiring the highest level of legal protection, so it is important that we get the scientific and evidential bases right.

To assess whether development has a negative or a positive impact, it is essential to know what the starting ecological conditions were. Without a sufficient baseline, it is not possible to evaluate whether an EDP is achieving the environmental improvements it is supposed to. Requiring a proper baseline and evidential base builds in transparency, increases trust in the whole system, and allows proper monitoring over time, and I welcome the noble Baroness’s explanation of the additional amendments on monitoring.

This amendment also requires Natural England to take account of the environmental principles in preparing the EDP and to publish a statement of how it has done so. The noble Baroness has already talked about the importance of the environmental principles, but it would be useful to get some clarification of how they would refer to Natural England’s role as opposed to ministerial roles, to which it is clear through legislation that they already apply. Requiring Natural England to consider them explicitly and to put that in the Bill would give clarity for developers, regulators and the public.

[Lord Randall of Uxbridge (Con)]

My Lords, my Amendment 285A commits to a new clause, which would require Natural England to undertake a baseline biodiversity survey for an EDP, very much along the lines that the noble Baroness, Lady Young of Old Scone, has just said, and would require the Secretary of State to consider this when determining whether an EDP passes the overall improvement test. I am very keen on biodiversity. My noble friend Lady Coffey referred to me as a twitcher. I take that not entirely well, because “twitcher” is slightly derogatory. I would like to be called a birder, and that is reflected in my coat of arms where there are four examples of a particular species which she will probably know from her reed beds at Minsmere: the bearded reedling, which of course is more commonly known as a bearded tit.

The reason for this biodiversity baseline is so that, as the noble Baroness said, you can find out what is happening now. The previous information may be out of date. It is important for the future condition of the area and to see whether the EDP is working, and it would highlight risks. In the interests of time, I will leave it there to hear what the Minister says on this.

[Lord Lucas (Con)]

My Lords, I support the amendments from the noble Baroness, Lady Young, and my noble friend Lord Randall. First, turning to baseline data and coming back to earlier discussions in Committee, I know that work is going on to improve what we have by way of baseline data, and I have been involved in extensive discussions with the local environment record centres and others. I would really appreciate being given an understanding, either now or by letter, of what the Government’s intentions are by way of giving momentum and a sense of determination to taking our current system and moving it on to the point where we gather all the environmental information, which we collect into one place, both that generated by the planning system and the extensive environmental data generated through high-quality amateur systems, and use for the benefit of understanding what is going on in local ecology.

It is all very well to do a baseline survey—it is traditional around us to do them in February—but doing proper baseline to really understand what is going on in an area requires presence throughout the year over a period of years. We have that data. We are collecting it. The world is full of seriously good amateur natural historians putting in a lot of work for free, and we are not taking advantage of that. We do not even use it to monitor the condition of SSSIs. Where the Government intend to go on this and how they will pick up on the discussions currently taking place and take them forward are important to understand before we get to Report. I will write to the Minister on that subject.

Secondly, when it comes to such things as water quality and nutrient neutrality, I am afraid that the monitoring system run by the Environment Agency has been run down to such an extent that we really do not have a good picture of what is going on in the average river catchment. As I have said before in Committee, my brother, Tim Palmer, is involved in the efforts that the Wylye Valley farmers are making. They have created their own laboratory. They are doing their own measurements, working with the Environment Agency, producing a much better quality of baseline data, and understanding where the problems come from and what can be done to deal with them.

High-resolution data makes it possible to resolve problems. The sort of stuff we have as the general flow from the Environment Agency just leaves us puzzling. Again, I very much hope that the Government will find themselves able to work with all the resources, interest and determination that are out there in the farming and other communities to get the data better and not just think that they have to pay huge amounts to environmental consultants to do it through the usual methods. There are better ways of doing these things by opening up. I hope that is the direction the Government will take.

[Lord Fuller (Con)]

My Lords, on the face of it, I welcome government Amendment 245A and the amendments from the noble Baroness, Lady Young of Old Scone, because it is clearly right that the public should understand what the sequence proposed might be.

My noble friend Lord Lucas has stolen some of my thunder in identifying that some of the research can take place only at certain times of year which, if it is a particular time window, may be, say, 11 months away, and there is this temporal longevity which may happen over many seasons. It is really important that, as part of that requirement for laying out the sequencing, we get an understanding of what timescales may be needed, because my concern is what happens at the point at which an EDP is first mooted and that sequencing process starts. What assurances can the Minister give that, because the process may take several years, it will not, in effect, impose a moratorium on any development while we wait for the sequences and processes to go through? These were laid out in the helpful diagram from the noble Lord, Lord Krebs, and the bits before.

It is important that government Amendment 245A which, as I say, I welcome, should be coupled with the anticipated timescales. It might be implicit in the amendment, but it would be helpful if the noble Baroness could make it explicit that sequences and timescales are in there and whether that applies to a moratorium in the meantime.

[Lord Roborough (Con)]

My Lords, I will speak first to my two amendments in this group. Amendment 293 would require Natural England to report on environmental delivery plans more regularly than simply at the halfway and completion points of the plan. This is important, because without frequent reporting, Parliament, local authorities and indeed the public are left in the dark for too long about whether the plans are on track. More frequent updates would allow for earlier course correction where plans are falling short, helping to build public confidence through transparency and ensure that delivery does not drift between the start and the finish. Can the Minister set out why the Government are confident that the current reporting framework is sufficient when many stakeholders believe more timely scrutiny is essential?

My Amendment 295 would require environmental delivery plan reports to include assessments of their impact on local communities and the local economy, rather than focusing solely on environmental consequences. This matters because environmental improvement is not achieved in isolation. Communities are directly affected, sometimes positively, sometimes negatively, by the choices made in land use, development restrictions or habitat restoration. Understanding the economic and social consequences alongside the environmental ones is the only way to ensure that these plans are fair, balanced and capable of commanding long-term public support.

My noble friends Lord Jamieson and Lady Scott of Bybrook have repeatedly argued that local community voices matter in planning and this is no different. On these Benches, we continue to stand up for local engagement and meaningful consultation so that communities are partners and not bystanders in shaping outcomes.

Briefly, I thank the noble Baroness, Lady Young of Old Scone, for her Amendment 258C and my noble friend Lord Randall of Uxbridge for his Amendment 285A. These are both vital because they strengthen the foundations on which environmental delivery plans are built. I have direct experience of this with my own farming activities and new forest development. Without accurate data on the baseline condition of the soil, flora and fauna, and water quality, it is simply impossible to be confident on progress. I would go further and suggest that this data should be published so that all stakeholders can hold Natural England to account. It is essential if plans are to be scientifically robust, deliver measurable benefits for nature and remain aligned with the environmental principles that your Lordships’ House has consistently supported. In that context, I should refer the Committee to my register of interests, which I have not done before in this respect, as a shareholder in Agricarbon.

These are constructive and necessary amendments. Taken together, they provide the checks, the evidence base and the community voice that will make environmental delivery plans more effective, more trusted and, ultimately, more deliverable.

13:45

[Lord Cromwell (CB)]

I will speak very briefly in support of Amendment 293 on the annual report. Put simply, if the department is not required to produce an annual report, will it do so and, if not, how is Parliament to be made aware of progress or difficulties, unless, perhaps by chance, a Select Committee calls in Natural England to tell it?

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank noble Lords for introducing their amendments and for the wider debate. I will speak first to Amendment 293, tabled by the noble Lord, Lord Roborough. That requires Natural England to produce annual reports on EDPs rather than just at the mid- and endpoint of an EDP’s lifespan. We think that our Amendment 325C, on the new reporting requirements, partly speaks to this issue. Our concern is that Amendment 293 would bring a disproportionate burden, given the strengthened reporting requirements that we have introduced in government Amendment 295A.

The noble Lord asked whether we were happy with these levels of reporting. It is important that the frequency of reporting strikes the right balance. Natural England will still be carrying out appropriate monitoring throughout the EDP’s life cycle and will retain the power to publish a report at any time. Similarly, requiring EDPs to include an assessment of their impact on the local economy and community in the relevant area, as is proposed by the noble Lord’s Amendment 295, would add a significant burden to the reporting requirements for EDPs. Of course, communities will be involved during the consultation process; I wonder whether it might be an idea to circulate the consultation guidelines to noble Lords, because obviously the consultation process is an important part of what we are proposing.

On Amendment 285A, I hope I can satisfy the noble Lord, Lord Randall, that requiring a biodiversity survey of an EDP area is already accommodated in the existing drafting to an extent that such a survey is not necessary. I was pleased to hear about his love of birds. He may be interested to know that I am a member of the RSPB, so perhaps I could be described as a minor “birdo” alongside him. Clause 57 already requires an EDP to describe the conservation status of each identified environmental feature at the EDP start date, setting out the relevant baseline. In doing so, as is the case for all duties carried out in relation to Part 3, Natural England will be required to take account of the best available scientific evidence. It is also important to remember that these are targeted plans to address the impact of development on a specific environmental feature. Requiring a full survey of all the biodiversity in an EDP area risks adding cost and burden that go far beyond what is required to consider the impact of development on the environmental feature.

Amendment 258C, tabled by my noble friend Lady Young, would add a series of additional requirements for Natural England when preparing an EDP. I know from discussions with my noble friend that she wishes to ensure that the NRF is as rigorous as possible while ensuring that it is an effective tool to support development to come forward. Specifically in respect of the supporting evidence base for EDPs and the consideration of the environmental principles, I assure my noble friend that these matters are already captured through the drafting and amplified by the Government’s amendments to Part 3.

My noble friend also asked about further evidence collection. Where it is necessary to gather additional ecological evidence to prepare and monitor an EDP, the associated costs may be recovered through developer contributions. Clause 57 already requires an EDP to set out why conservation measures are considered appropriate, and new Clause 87A(2) requires the Secretary of State and Natural England to take account of the best available scientific evidence when exercising functions in relation to EDPs. Clause 57 also requires an EDP to describe the conservation status of each identified environmental feature, again with regard to the best available scientific evidence. This means that there is already a requirement for Natural England to ensure that there is a solid base of scientific evidence, including adequate baseline data, to inform the preparation of the EDP. My noble friend asked why Natural England is required to have regard to environmental principles as it refers to Ministers. I reiterate that the Environment Act requires the Secretary of State to take them into account when making their decision to approve or make an EDP.

I recognise the desire to ensure that EDPs deliver as much for the environment as possible, but we must also ensure that we are not asking developers to address more than is reasonable or that we are allowing EDPs to replace the important wider programme of work which is under way to protect important sites and species as part of our ambitions in the overall environmental improvement plan. We have to get that balance right. We have to make sure that the environment supports development and at the same time does not stop important development where we need it.

The noble Lord, Lord Lucas, asked quite a lot of questions about the baseline and other things. It is probably helpful if I put my answers in writing to the noble Lord. I hope that with these explanations and assurances, noble Lords will not press their amendments. I beg to move.

Amendment 245A agreed.

Amendment 246 not moved.

Amendment 246A

Moved by

[Baroness Hayman of Ullock]

246A: Clause 55, page 92, line 9, leave out “, if Natural England considers it appropriate,”
Member’s explanatory statement
This amendment is consequential on my amendment to clause 55 inserting a new subsection (4A).

Amendment 246A agreed.

Amendment 247 not moved.

Amendment 247A

Moved by

[Baroness Hayman of Ullock]

247A: Clause 55, page 92, line 12, at end insert—
“(4A) But an EDP may include conservation measures of the type mentioned in subsection (4) only if Natural England considers that such measures would make a greater contribution to the improvement of the conservation status of the feature than measures that address the environmental impact of development on the feature at the protected site itself.”Member’s explanatory statement
The effect of this amendment would be that network conservation measures can only be included in an EDP if Natural England considers that they will be more effective, in contributing to the improvement of the conservation status of the affected feature, than onsite measures.

Amendment 247A agreed.

Amendment 248 had been withdrawn from the Marshalled List.

House resumed.

13:51

Sitting suspended.