Planning and Infrastructure Bill

Lord Banner Excerpts

Report stage
Monday 27th October 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, this amendment is about consideration of an EDP by a local council. As I referred to on a previous group of amendments including an amendment in my name, because we have not gone to the full consideration of an EDP, it is not my intention to press this amendment later. This is effectively giving substance to what the chief executive of Natural England said to the Commons Committee considering this Bill, which was that if a council was not content with how an EDP was delivering, it would not have to give planning permission, but that is not expressed anywhere else in the Bill. That said, as we are yet to get properly to Part 3, I will reserve my judgment about whether to return to this another time. I beg to move.

[Lord Banner (Con)]

I shall speak to Amendments 163A and 163B, tabled in my name. These seek to ensure that the nature restoration fund is properly aligned with the planning process and, in particular, that it is capable of supporting the larger and more complex developments. It is my view that the current drafting of Clause 66 risks preventing some of the larger, more complicated schemes from using an environmental delivery plan. These kinds of larger, more complicated developments often evolve after the development has started. We will hear more about this on Hillside, at whatever ungodly hour we get to it. For example, outline permission may be granted, but a developer may subsequently seek to change the planning conditions attached to the permission. There may be amendments to other aspects of the development under Section 96A or otherwise. It may also be the case that larger developments need to apply for retrospective planning permission after development has commenced to regularise the development when it has been built differently to the permission.

In its current form, Clause 66 allows developers to request to use an EDP only before development has commenced—a single snapshot in time. While I can understand why it was drafted in that way, inadvertently, it seems to me, it risks limiting the NRF by failing to accommodate the possibility of ever-evolving development schemes. If the Government are going to deliver their growth and housing targets, I assume that they would want to ensure that the NRF could support the full range of development projects, particularly given that the larger ones tend to have the greatest tendency to evolve during their often decades-long and certainly years-long lifetimes.

Amendment 163A would not require Natural England to accept such a development but would allow the design of EDPs to accommodate these scenarios where appropriate. Amendment 163B similarly does not require Natural England to accept a request from a promoter of such development to pay the levy, but it makes clear that deciding whether to accept it is guided by the Secretary of State’s policy on the matter. I encourage the Government to consider this amendment in the spirit in which it is tabled, to ensure the proper functioning of legislation and help the nature restoration fund to navigate the complexities of the planning system.

[Earl Russell (LD)]

My Lords, in this group of amendments on the EDP consultation process, we are broadly in support of Amendment 87, tabled by the noble Baroness, Lady Coffey. We appreciate Amendments 163 and 163B, tabled by the noble Lord, Lord Banner, but we have rather more care in relation to these and will ask some questions about them.

Amendment 87 strikes us as a sensible and necessary clarification, seeking to require local planning authorities to have regard to an EDP relevant to the land in question. It closes an important procedural loop between the Bill’s new environmental mechanisms and the Town and Country Planning Act. I will move on to the other amendments, as I do not think that Amendment 87 will be pushed to a vote.

With Amendment 163A, we are entering more complex territory. Having listened to the noble Lord’s speech, I know that his amendment is intended in relation only to large developments. However, this amendment seeks to allow developers to use an EDP after development has commenced. This is a fundamental change to how the Bill was originally drafted. Although this amendment and the next one are short, they would have profound impacts on the nature of the Bill and the reasoning behind it. Given the late stage that we find ourselves in, it is worth treating these amendments with a degree of cautious scepticism. I have a number of questions on these amendments, particularly as I understand that the Minister might be intending to support them to some extent.

I understand the reasoning behind them. Projects evolve, impacts manifest late in the process and developers may wish to regularise matters through this pathway. Indeed, in principle, a degree of flexibility can be helpful for all concerned in the planning process. This could also help to speed things up, which is one of the core intentions of the Bill. However, flexibility, if poorly secured and accounted for, risks turning things instead into loopholes and could give the Government much more direct power and say over matters of importance. EDPs were created precisely to ensure that environmental protection is front-loaded, assessed, integrated and approved before the first spade hits the ground. If we are now to permit post-commencement plans, we are blurring that critical line. The Government clearly set that out in the original drafting of the Bill, so this is a very fundamental change.

Might this invite retrospective justification of impacts that should have been avoided or evaluated in advance, and what is the mechanism that will stop deliberate misuse of this new clause should a developer be so minded to do that? How will post-commencement EDPs preserve the same environmental rigour as those agreed at the outset of the drafting of this Bill? What safeguards will ensure that the flexibility serves better compliance, not convenient regularisation after the fact? How will this affect the deterrent from starting work without proper authorisation? The credibility of EDPs and public trust depend on certainty that environmental obligations cannot be adjusted once the bulldozers roll in. This could increase uncertainty for developers themselves. For all the talk of streamlining, shifting assessments mid-project can introduce delay, legal risk and even greater reputational exposure.