Environment Bill

Debate between Earl of Devon and Lord Hope of Craighead

Committee stage
Wednesday 7th July 2021 Lords Chamber

[The Earl of Devon (CB)]

My Lords, it is a regret that we have to group so many important amendments together due to the shortness of time and the Government’s self-imposed deadline of November for the passage of this Bill. This group of amendments raises a lot of very interesting issues, particularly the Government’s well-received extension of biodiversity net gain to nationally significant infrastructure projects, of which I too am greatly supportive.

I am equally sympathetic to the suggestion from the noble Baroness, Lady Jones, to extend biodiversity net gain requirements to other major infrastructure projects. I note, however, that the detail of how the Government’s extension of biodiversity net gain is to be delivered remains to be worked out. It does not appear that we will know details of that for some time, so we are legislating once again in something of a vacuum.

I raised this issue of uncertainty at Second Reading and was not afforded a clear response. It would be helpful if the Minister were able to explain in his response the impact he expects his amendment to have on land use within England. How much land will be required to offset biodiversity loss by nationally significant infrastructure projects, for example, in the 10 years from 2025? It will also be interesting to know how much land the Secretary of State will require to deliver the biodiversity credits to be made available under Clause 94, particularly subsection (6)(b).

The reason why this is relevant is that we have an ever-increasing demand on land use from rewilding and wildlife corridors to trees, species abundance, nature recovery and conservation strategies—the three tiers of environmental land management—as well as surging demand for housing and renewable energy, including biomass, all of which sit alongside the basic and ever-increasing needs to feed the nation on healthy and nutritious food without further degrading our environment. I am concerned that we are layering worthy environmental ambition upon ambition with the view to parading some world-leading ecological credentials to COP 26, but without giving enough thought to how we practically will deliver these targets with the very limited amount of land within our beloved island.

As to specifics, I agree with the noble Lord, Lord Blencathra, in welcoming the application of biodiversity net gain to the marine environment. This is of particular interest to the south-west of England, which offers such prospects for large-scale offshore ecosystem services, including wind, tide and wave energy, together with considerable natural capital assets within our inshore waters, foreshores and estuaries.

I would resist the efforts of the noble Baroness, Lady Jones, to introduce a perpetuity requirement to biodiversity gains. Perpetuity is a very long time and, given the pressure on land use, of which I have already spoken, we will do ourselves no favours to be tying up particular areas of land with well-intentioned obligations born at the beginning of the 21st century, when we transparently still know so little about what we need to achieve and the means by which we will get there. The only thing we can be confident about now is how little we know of the wondrous workings of nature. We should not commit ourselves to perpetual land use policies now. Rather, we will, as the noble Lord, Lord Blencathra, noted, need the flexibility of properly drafted conservation covenants, one hopes executed by deed, to which we will return in the coming days.

Finally, as always, the noble Lord, Lord Lucas, proposes a series of helpful and clarificatory amendments to Clause 93. I hope that the Minister will consider adopting them on Report. Measurable standards are going to be key to the success of biodiversity net gain.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Earl, Lord Devon, although I am not entirely in sympathy with what he said about Amendment 196 in the name of the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, among others. I wish to say something in support of that amendment and say a word or two about Amendment 197 of the noble Lord, Lord Blencathra, about high-speed rail lines, which raises an interesting issue.

First, on Amendment 196, the condition referred to in paragraph 9(3) of Schedule 14, which requires the habitat to be

“maintained for at least 30 years,”

seems rather half-hearted, as the noble Baroness, Lady Hayman of Ullock, said in her very able introduction to this amendment. We are dealing here with works that the planning authority considers will result in an increase in the pre-development biodiversity value of the habitat, which is significant. Works of the kind that are being contemplated here require to be designed and planned for, as well as maintained. The period for which they are likely to be maintained is bound to affect the design and quality of the works and the effort that has been put into them.

What we should aim for is really long-term improvements to replace the huge loss of habitats. In many cases, the features we most value—such as ancient woodlands, which the noble Baroness, Lady Young of Old Scone, has been talking about so much with my support—have been built up to their present state over centuries. When I refer to ancient woodlands, I have in mind what is to be seen at ground level, as well as the trees. I am thinking about the quantities of mosses and flowers, such as the wood anemone and wild hyacinth, which grace our woodlands and, where lost, will take many decades to recreate. Thirty years is far too short to achieve that. Maybe perpetuity is too long, but the present formulation in the Bill seems not only half-hearted but misguided.

Amendment 197 of the noble Lord, Lord Blencathra, would require the submission of a biodiversity gain plan as a condition of planning permission for the HS2 lines from London to West Midlands and from West Midlands to Crewe, and for the proposed extension from Crewe to Manchester. I very much welcome the opportunity that this amendment has provided for us to discuss how net gain can be applied to projects such as these, including the proposed extension from Crewe to Manchester, which offers an opportunity for this matter to be taken forward.

I am in sympathy with the application of the net gain principle, and, like the noble Lord, Lord Blencathra, I am delighted with the amendment the Government are bringing forward to introduce a scheme for dealing with significant infrastructure projects. But to apply the condition that he is looking for to the two lines that already exist would almost certainly be unworkable at this stage, as these lines both already have the benefit of deemed planning permission under the relevant hybrid Bills. Furthermore, the extent of the land to be taken has been settled—taken compulsorily, I should stress, from the landowners.

The possibility of applying that to the proposed extension is a different matter. I am sure that the Minister will correct me if I am wrong, but my understanding of his very lengthy amendments is that they would not extend to the proposed HS2 line for the rather technical reason that permission for it will not be given under the Planning Acts, which are what the amendment is directed at, but under the hybrid Bill legislation, under which the two existing lines received their planning permission. That is a technical reason but unless the schedule is extended, as proposed in Amendment 194C, to other projects beyond those mentioned and dealt with under the Planning Acts, I do not see how the proposed line can be covered.

I should like to say a little more about that because I was the chairman of the Select Committee on the High Speed Rail (West Midland-Crewe) Bill. As part of my background reading, I had to study the report of the Select Committee on the High Speed Rail (London-West Midlands) Bill, chaired by Lord Walker of Gestingthorpe. The issue of net gain came up in both cases and one can trace through the development of those various lines a development in the approach to the issue being taken by HS2 as to whether net gain should be and could be achieved. In both cases, the promoter set itself at the outset the aim of achieving no net loss of diversity. In both cases, this attracted criticism from, among others, the Royal Society of Wildlife Trusts and the Woodland Trust.

The objection before Lord Walker’s committee was that the system of measurement that the promoter planned to adopt to achieve no net loss was different from the biodiversity-offsetting metric adopted by Defra for use by local planning authorities. At the committee’s request, Natural England looked into the issue and provided a report. The committee heard evidence from the trusts and others; it regarded the Defra metric as sensible for relatively small developments but said that it was not appropriate for use in the case of large linear projects such as the HS2 lines. The reference to linear projects is worth bearing in mind because in the case of those lines, one is dealing with projects that pass through areas of several local planning authorities and it is not so easy for planning conditions to be applied under and discussed with various authorities. Anyway, in that case, the issue of net gain was not pursued.

When the issue came before my committee three years later, the argument had developed beyond comparing the two approaches to offsetting. The Royal Society of Wildlife Trusts asked for a clause to be added to our Bill to require HS2 to ensure a net gain in biodiversity in perpetuity—note the words “in perpetuity”—with appropriate funding, in place of the promoter’s commitment to no net loss. The aim was to achieve biodiversity gains in the detailed design and implementation of the scheme.

However, the promoter pointed out that net gain could not be guaranteed without further purchase of land beyond the Bill limits, and that is one reason why I do not think that the Minister’s amendment relating to the two existing lines can be made to work. We considered that it would not be appropriate to require landowners, particularly farmers who were giving up so much of their land for the line, to be required to give up more land that was already proposed in order to provide for net gain. However, we secured an assurance from HS2 that it would do everything practicable to achieve net gain in the detailed design of the project within the Bill limits. Furthermore, HS2 was funding a scheme—a £2 million biodiversity fund—that would enable biodiversity to be provided outside the Bill limits by other landowners who were willing voluntarily to provide the kind of land needed for biodiversity gain to be achieved.