Planning and Infrastructure Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Monday 15th September 2025 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I congratulated the noble Baroness in Grand Committee last week and I am delighted to be able to repeat my congratulations today. It is lovely to see her in her place.

I have considerable sympathy for Amendment 212, moved by my noble friend Lord Randall of Uxbridge. I saw in the press last week that my noble friend Lord Goldsmith of Richmond Park had been married, and I assume he is on honeymoon. My noble friend said he was being detained in another place, which makes it sound like a rather interesting honeymoon.

However, moving swiftly on, the swifts are magnificent birds, but swifts in the UK have experienced a severe population decline, with numbers falling by over 60% between 1995 and 2022. That has now placed them on the red list of birds of conservation concern. This alarming drop is primarily due to the loss of suitable nesting sites and buildings, as my noble friend said, and a reduction in their insect food supply. Modern buildings lack the crevices and cavities swifts need, while building renovations and demolitions destroy their existing nests. A widespread lack of insects further threatens their survival, impacting their ability to raise young.

I have the privilege of serving on the Council of Europe, and I go to Strasbourg four times a year. It is amazing the number of swifts one sees there. That is because, in the old part of Strasbourg, near the cathedral in Place Gutenberg, there are thousands of these old-fashioned buildings with cavities, crevices and little garrets, and what I consider to be holes all over the roof, which are perfect for swifts. Last year, for some reason, there were hardly any and we were infested with midges and mosquitoes. This year, one could sit outside with a little glass of wine and watch hundreds of them at dusk, swooping and diving, with no midges or mosquitoes. They had the right facilities for them to nest and they had them there.

The cost of swift bricks is roughly £30. One can get more expensive ones, of course, but they are not necessary. The Government might say that, if they make it compulsory for all buildings to have swift bricks, that will drive up the cost of housing. But not all housing is suitable for these bricks and buildings need to be higher than five metres above ground. Even if all the 300,000 houses were suitable, and if the ideal three boxes per house were installed, we are looking at £90 per house or £18 million for the whole 300,000 homes. The Government’s green levy for their fanatical drive for net zero will add 20% to all heating bills. Last year, it was an extra £30 per household. As from 1 April this year, the average household has had an increase of £9.25 to its monthly bill. That £111 is far in excess of the cost of swift bricks.

The Government are splashing out about £7,500 per household on subsidising heat pumps, and they have paid out more than £148 million for heat pump installations through the boiler upgrade scheme as of May 2024, with additional funding planned to bring the total up to £1.5 billion until March 2028. That is £1.5 billion for inadequate heat pumps, so do not tell us that a £30 brick would drive up housing costs to unacceptable levels. I look forward to hearing the Minister’s answers to that.

As far as the amendment from the noble Baroness, Lady Freeman, is concerned, I am not fully up to speed on the cost of safety glass, but I can comment on the comments by the noble Earl, Lord Caithness. Up at our house in Penrith, we plant an awful lot of trees near the window. The trees are full of nesting birds, but we found that the reflection from the glass was causing bird strikes. The problem was quickly solved, because one can get packets of little decals at three for £5 to put on the windows. Since then, it has not been a 90% drop: it has been a 100% drop—no deaths. I am not sure that is a solution for commercial buildings or high-rise ones, but one can stop all these bird deaths in ordinary houses by simple, cheap decals that you can get from the RSPB, and the decals can say anything they like.

On Amendment 338, I can only make a personal comment. If colleagues wish to go to the new government building in Peterborough, a building which houses the Passport Office, Natural England, the Environment Agency, Defra and the JNCC, in the foyer they will find something called the Blencathra—a green wall. This came about when I served on the JNCC a few years ago. The new government building was designed, and late on in the day they shared the design with all the organisations that were to occupy it. They boasted that the windows were 100% net zero, the air conditioning was net zero, and everything else was net zero. I said, “But have you got any greenery in the place?” Ah, no, they had not thought of that. We could not put anything on the roof—it was full of air conditioning and other things—so after a considerable battle we got a green wall inside.

I appreciate that that might not be a full answer to the amendments moved by the noble Baroness. I do not suggest that we should have a compulsory law on this—that would drive up enormous costs—but, if organisations are willing to do it, the solution is quite simple.

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

My Lords, I thank all noble Lords who have taken part in this interesting debate on the planning features around birds and other wildlife. I thank the noble Lords, Lord Teverson and Lord Blencathra, for their kind welcome of the fact I am still here in front of noble Lords today.

I am grateful to the noble Lord, Lord Goldsmith, for tabling this amendment, and to the noble Lord, Lord Randall, for introducing it so swiftly and beautifully. I thank the noble Baronesses, Lady Freeman, Lady Grender and Lady Bennett, for their amendments; I also thank the noble Baroness, Lady Parminter, for introducing the amendment in the name of the noble Baroness, Lady Grender, on her behalf. These amendments seek to use building regulations to mandate the use of swift bricks; seek to require buildings to include measures to prevent bird fatality; and seek to require developers to use a range of elements to support wildlife.

The protection of species is crucial to ensuring the health of our ecosystems and the growth of our natural capital. I fully support the objective of increasing biodiversity and ensuring that new development contributes positively to nature. The Government acknowledge the dramatic decline of swifts, which we have heard about during this debate, alongside much of our other most precious wildlife. We are committed to driving nature’s recovery while building the homes that we desperately need.

The noble Lord, Lord Randall, mentioned being converted to swift bricks. I assure him that I have already been converted to them and other building materials that can be used to increase wildlife. What we are looking at here, though, is how we can go about achieving that, not whether we support it in principle; in principle, we do. We do not believe that building regulations are the best route to achieving the objective of protecting species and providing habitats alongside new homes.

This is because building regulations in the UK are focused primarily on safeguarding the health, safety and well-being of individuals in and around buildings. They have not, historically, been applied to the protection of wildlife or biodiversity. Expanding their scope to include measures aimed at conserving species would represent a significant shift in regulatory intent. Such an expansion would also place considerable additional pressure on a system that is already adapting to the enhanced requirements introduced by the Building Safety Act.

The planning system is, we believe, the more appropriate route to secure these outcomes. Existing protections in planning policy support the use of wildlife-friendly features in and around new buildings to improve biodiversity. The national design guidance also promotes biodiversity enhancement through site-specific measures to support biodiversity net gains at the neighbourhood, street and household levels, as well as encouraging the protection and improvement of existing areas of valuable biodiversity—including through wildlife-friendly features.

Many animals in England are already protected by law. How development proposals need to consider these animals varies from species to species. We expect local planning authorities to use the standing advice published by Natural England to assess whether a planning application would harm or disturb a protected species. In particular, under the Wildlife and Countryside Act, it is an offence to kill, injure or disturb wild birds.

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[Lord Cromwell (CB)]

The noble Lord asked me to say something before I sat down. I will now sit down, but he has thoroughly ruined my evening. Thank you.

[Baroness Hayman of Ullock (Lab)]

My Lords, please bear with me. I only have 20 minutes. It has been a very long debate and, because of the clause stand parts, I need to go through everything. I will do my best to cover everything off, but anything I do not, I will get back to the noble Lords in writing.

Our vision is for a planning system that delivers for both nature and people. The reforms in the Bill are critical to meeting our ambitious housebuilding targets and fast-tracking the planning decisions on major economic infrastructure projects by the end of this Parliament. But we have been consistently clear that meeting those objectives need not and will not come at the cost of the environment. It is this ethos that sits at the centre of how we have designed the nature restoration fund.

The new system is not simply about streamlining how environmental obligations are discharged but about using funds more effectively to secure better outcomes for the environment. We know that the status quo has not been working, neither for development nor for nature. The noble Baroness, Lady Bennett, mentioned concerns that have been raised. We recognise the concerns about establishing an alternative approach. We have worked closely with stakeholders and have taken their views on board, which has culminated in the package of government amendments laid in Committee that noble Lords have mentioned. I would like to particularly thank the noble Earl, Lord Russell, for recognising the improvements that they have brought to the Bill.

I want to set out how this new approach is going to work. The noble Lord, Lord Krebs, produced a very helpful diagram at the recent drop-in session on the Bill. We are working on that to make it fully accurate and we will share further information in a letter that will help noble Lords to better understand our new approach and provide reassurance on what we are trying to achieve. I hope that that will clarify a number of questions that have been asked today, including around the mitigation hierarchy and other concerns that were raised regarding developers by the noble Lord, Lord Lucas. I apologise that they have not been ready for today’s session, but hopefully we will have them ahead of Wednesday.

It is important to highlight that the NRF establishes an alternative mechanism to discharge existing environmental obligations. It does not create any new obligations or repeal any existing environmental obligations. Where an EDP is put in place, it will remain open to developers either to use the EDP or to discharge the relevant environmental obligation under the existing system. This is baked into the design of EDPs, which will set out the capacity of development they can support but can scale the delivery of conservation measures according to the amount of development that comes forward.

This highlights another important feature of this new model in that Natural England and, ultimately, the Secretary of State would not prepare an EDP where it was not necessary to support development and the environment. These are targeted tools that will be used only where there is both a clear need from development and an ecological case that the EDP could materially outweigh the negative impact of development.

The noble Earl, Lord Caithness, and the noble Lord, Lord Cromwell, raised concerns about the role of Natural England. I am pleased that the noble Earl now has a meeting arranged but, as the noble Baroness, Lady Coffey, said, the next debate will be an opportunity to get into more depth around Natural England’s role.

I want to clarify that, before the EDP comes to the Secretary of State, it will be subject to proper scrutiny through public consultation. Only then would the Secretary of State consider whether the EDP could be made in line with the overall improvement test. This consultation is vital, because it is the stage when people can test the approach being proposed, in terms of the design and efficacy of the conservation measures. This is also where Natural England will set out whether it is proposing to include planning conditions to drive action on the part of developers, as part of the EDP. In the limited circumstances where conservation measures benefit a site different from the one impacted by development, the EDP will set out the ecological justification for these measures and how they are more beneficial to the environmental feature in question than on-site measures.

[Lord Cromwell (CB)]

Would the Minister clarify? I will be very brief. The EDP is designed on the basis of offsetting some environmental damage, but at what point do the developers choose whether or not to pay the levy into it?

[Baroness Hayman of Ullock (Lab)]

This is what we are trying to do with the diagram and the note; they will clarify all that.

If, after the consultation and consideration of the overall improvement test, an EDP is made, developers would be able to make a payment into the EDP which would, subject to any conditions, discharge the relevant environmental obligation. The responsibility for delivering conservation measures and the overall improvement would then move to Natural England, which would use the money received through the nature restoration levy to secure the necessary conservation measures. These would then be supported by a thorough regime of monitoring and reporting to ensure that the outcomes are delivered, with the government amendments clarifying the actions that must be taken were conservation measures not to perform as expected. Once in place, the EDPs will deliver a streamlined approach for developers while improving the conservation status of the environmental feature.

This is part of Clause 53, so I will address the first amendment in this group, because it is relevant to this clause. Amendment 227H, from the noble Lord, Lord Roborough, would change the name “environmental development plan” to “environmental harm mitigation plan”. I think that we have different ambitions for the nature restoration fund. We are clear, both in our aims and through the legislation, that EDPs will go beyond simply mitigating harm and will more materially outweigh the negative impact of a development. With that explanation, I hope that the noble Lord is able to withdraw that amendment.

Clause 54 sets out the requirements for what an EDP must include in relation to area, type of development, volumes of development and duration of the EDP, providing clarity on the scope and setting clear expectations for Natural England on what needs to be included when preparing an EDP.

Clause 55 introduces the concept of conservation measures, which are the measures to be funded by an EDP. It also introduces the concept of the environmental feature, which is a protected feature of a protected site or species that is likely to be impacted by a development that the conservation measures seek to address. It establishes the framework of the rules.

While we are on Clause 55, Amendments 302 and 303, tabled by the noble Lord, Roborough, seek to limit the disapplication of the habitats regulations to the specific nature and specific impacts identified in the EDP. This is important and I am pleased to be able to provide clarity and assurance on this point. As drafted, Clause 55(1) defines an environmental impact as

“one or more ways in which that negative effect is likely to be caused by the development”,

as identified by the EDP. This means that the disapplication in Schedule 4 already applies only to the specific impacts of the development identified in the EDP. Of course, there could be circumstances where it may have multiple environmental impacts and, if only one of those was addressed by the EDP, the remaining environmental impacts would still need to be assessed through the existing system.

Clause 56 requires Natural England to produce charging schedules, which is critical as that will establish the rates that developers need to pay to rely on the EDP. The clause makes it clear that different rates can apply for different kinds of development covered by the EDP. Clause 57 sets up further detail around the information that Natural England has to include in an EDP; for example, an underlying environmental condition. That is why an EDP must describe the current conservation status of each environmental feature, so that we can set a baseline for improvements and how they are measured.

Looking at the procedures, Clause 58 sets out the requirements that Natural England must meet. The Government have tabled an amendment to replace Clause 58 with Clause 87A, which extends and broadens the duties it contains to other functions of Natural England and the Secretary of State in relation to this part. I will speak to this amendment in due course but, in the light of that, the Government are not seeking to support the inclusion of the current Clause 58.

In introducing the restoration fund, we have been clear that this new approach will be expert-led and ecologically sound. Clause 59 is therefore central. It secures the effective scrutiny and has a consultation process to lead to better EDPs informed by relevant experts and local communities, but also provides the Secretary of State with the assurance that he needs to approve an EDP. The nature restoration fund is, as I said, not just about streamlining but about using funds more effectively, which is why Clause 60 requires that the Secretary of State may approve an EDP only once satisfied that it passes the overall improvement test. The noble Baroness, Lady Bennett, mentioned the importance of the overall improvement test. The Secretary of State has to be satisfied that it will be delivered by the end date of the EDP. EDPs are therefore focused on the timely delivery of environmental outcomes.

I move on to the reporting, amendment, revocation and challenge requirements. Once an EDP is made, it is crucial that Natural England can effectively monitor the performance of the conservation measures and progress made. It is vital that key information, such as performance of conservation measures and the remaining development capacity, are made available. It is important to have transparency so that proactive steps can be taken if an EDP is underperforming. It also allows the Secretary of State to amend an EDP if required.

Clause 62 has the reporting requirements and also looks at how the levy is being set and the transparency around that, so that developers, the local community and environmental groups can continue to engage during the EDP’s lifespan. Clause 63 gives the Secretary of State the power to amend EDPs in specific circumstances where it is necessary to do so; for example, to reflect new environmental information or to accommodate additional development. Crucially, the Secretary of State is bound by the same overall improvement test as when making an EDP.

I think it was the noble Baroness, Lady Coffey, who talked about the process for revoking; the circumstances on how that would be used are established in Clause 64. Of course, this is the option of last resort, and the Bill includes various safeguards to ensure that we do not reach this point, including the ability to amend and to deploy back-up conservation measures if monitoring indicates underperformance. Development that has relied on the EDP prior to revocation is not affected by the decision to revoke. The Secretary of State must then consider appropriate actions to ensure that the negative effect of development on environmental features where a developer has already committed to pay the levy before revocation are suitably addressed. Obligations discharged through an EDP will not be subject to separate consideration at the point of development consent, so we recognise that it is important to provide a route to challenge EDPs. The route of challenge is in Clause 65 and enables a claim for judicial review to be brought within a period of six weeks from the date that the EDP is published.

I turn to how the nature restoration levy operates. Clause 66 sets out the framework. If a request is accepted by Natural England, the developer is then committed to making the relevant payment, which will be set out in the charging schedule, which will be published. Once the developer has committed to paying the levy, the environmental obligations are altered in line with the EDP. Ensuring that Natural England can secure the funds to deliver the conservation measures through the nature restoration levy is central to this approach and provides certainty. The positive outcomes for nature that the EDP will deliver will be realised only if the developer chooses to make them. Therefore, the Secretary of State must aim to ensure that the cost of the levy does not make development unviable. The regulations will be able to deal with a range of technical matters relating to the ability to pay, such as cancellation or withdrawal of such liability, and the regulations will be subject to the affirmative procedure.

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[Lord Blencathra (Con)]

My Lords, this group of amendments concerning Part 3 has a particular focus on the role and powers of Natural England. Due to the constraints on time this evening, I will not address each amendment in detail. Many of them are rightly probing in nature. They seek clarification, reassurance and, in some cases, correction. Others go further by proposing the removal of references to Natural England entirely, placing the powers instead with the Secretary of State, who is ultimately accountable to this Parliament. The Secretary of State should in this instance be that of Defra rather than MCHLG, as is suggested in other amendments. I seek clarification from the Minister on this point when she replies. I understand that, as far as EDPs are concerned, Natural England might report to MCHLG rather than Defra. If that were the case I would be appalled because, while Natural England has a lot of scientists who are experts on flora and fauna and Defra has some who understand this, the good thing about Defra civil servants is that they know what they do not know and they go back to Natural England for answers. I would be very worried if EDPs were being driven by the Ministry of Housing, Communities and Local Government, much of which cannot tell the difference between a bat and a butterfly. We must have a firm answer to that, because it would be very worrying.

I should say at the outset that, later in my speech, I will come on to some of the criticisms of Natural England in terms of this Bill and where its powers should be restricted. However, I will not join in the attacks on Natural England as an institution. I admire greatly my noble friend Lord Caithness’s expertise on biodiversity—he participates in every Bill and adds considerable knowledge to it—but I do not recognise some of the most trenchant criticisms of Natural England in his speeches, both on the previous group and on this one. I have come across its scientific expertise and technical contributions, and I believe that it is widely respected.

My noble friend made a point about staff losses in Natural England. The difficulty is that Natural England is required to recruit highly professional biodiversity students—people with expertise in flora and fauna, and there ain’t many of those about. When they are employed, it is on reasonably low pay; then, as soon as they have got their feet under the table and are highly qualified, they get snapped up by other organisations and Natural England cannot afford to pay at the level required to keep them. Nevertheless, I am confident that it still has sufficient expertise to do its job.

My noble friend Lord Caithness also said that Natural England manages only one national nature reserve. It manages two-thirds of 224 national nature reserves. Criticism was also made of how it runs SSSIs. I was on the board down at Dartmoor when the decision was made. The problem is that Natural England is not allowed to consider any socioeconomic matters, such as the effect on farming. The 2006 Act states simply that, if the scientific evidence is there—that the bugs, beasties, flora and fauna are special and need to be protected—we have no option but to make that decision on scientific grounds. I reject any suggestion that Natural England’s board or others were making perverse decisions on SSSIs and not taking the economy into account.

I say to my noble friend Lady Coffey that it was my understanding that nearly the whole of the coastal path had been signed off and submitted to Ministers for approval. I think that it has nearly all been approved; there may be 20 or 30 miles that have not been. Of course it is not all open yet, because there are construction problems. How do you put a footpath across a mud estuary? There are obstructions from some landowners. I hope that, if not tonight then at some other point, the Minister can answer the question by explaining just how much of the coastal path has been completed by Natural England and the Government.

Those things were slightly not in my brief, but I thought that I would try to deal with some of the points because I was personally involved.

Part 3 hands unprecedented CPO powers to Natural England. These powers will allow Natural England to take land away from owners, not because of public interest infrastructure but to fulfil EDPs. Landowners will be forced to apply for subsidy-style payments from Natural England, yet we are given no detail on how these payments will be set, distributed or enforced; nor are landowners granted the right to refuse. Such a model will fundamentally alter the relationship between the landowner and the state—and do so without adequate consultation, accountability or clear regulatory safeguards.

Under the proposed EDP system, developers will contribute to a centralised fund rather than meeting site-specific environmental obligations. That fund will then be spent by Natural England on generalised environmental improvements elsewhere. This raises serious concerns. We will be not only replacing local mitigation with a remote offsetting scheme but creating a system in which Natural England becomes the operational body, the financial manager and the regulator all in one; in that regard, I agree with my noble friend Lord Fuller. This is a recipe for conflict of interest, lack of oversight and delivery risk. Natural England will be responsible for monitoring and governing the very schemes that it has designed and funded. Worryingly, there is no separation of powers, no mechanism for appeal and no guarantee of delivery.

The consequences of that will be profound. Planning authorities, which bear the ultimate responsibility for approving development, will rightly be cautious about relying on untested, underfunded and centrally managed EDPs. The result may well be an increase in planning refusals, not fewer. We must look seriously at Natural England’s capacity to carry out this enormous new responsibility. So I ask the Minister: how many EDPs will Natural England be expected to prepare, over what timescale, and with what funding and staffing?

Despite huge increases in funding by the last Government, we know that Natural England is still underresourced and understaffed to do all the new work that it will have to do. As it stands, it does not have the capacity to deliver what Part 3 is asking of it. Beyond funding, it will have the problem of finding the skilled ecologists required to make this work—hundreds of them on top of the thousands of new planners, builders and tradespeople needed for our broader planning ambitions. As I said earlier, as Natural England is competing to get those experts, you can bet that outside bodies and developers will also be grabbing them so that they can have answers and challenge the EDP decisions. The issues of funding certainty and operational capacity are not theoretical; they are central. The funding pipeline through the nature restoration fund is inherently unpredictable. How can Natural England plan and deliver on this basis?

Lastly, I turn to the proportionality of the powers that we are considering. Under Part 3, Natural England will be granted forcible entry powers, compulsory purchase order powers and the ability to set its own fees, all without direct parliamentary accountability. These powers could extend even to gardens and allotments—a proposition that should give all noble Lords some pause.

I know the Minister will listen carefully to the concerns raised in this group and that we can engage constructively with her on this issue moving forward. I end as I began by saying, yes, these are the criticisms I have of the proposed powers in the Bill, but I do not accept some of the more trenchant criticisms of the success of Natural England to date. Yes, mistakes have been made and there are difficulties, but nevertheless there are a lot of good people trying to do a good job for biodiversity in this country, and I was one of them.

[Baroness Hayman of Ullock (Lab)]

My Lords, there are a number of amendments in this group by the noble Baronesses, Lady Coffey and Lady McIntosh, and the noble Lord, Lord Lucas, seeking to amend Clauses 53 to 55, 57 to 59, 86 and 88 of the Bill. I will consider the amendments together as they relate to the role of Natural England and who can undertake the role of developing and implementing an EDP.

I turn to the amendments that seek to remove Natural England as the body that can undertake the role of developing and implementing an EDP named in the Bill, as well as adding Natural England to the list of consultees for an EDP. We believe that Natural England is the most suitable delivery body, given its expertise in relation to protected sites and species, existing statutory functions and powers and ability to work right across England. Removing Natural England as the body that can undertake the role of developing and implementing an EDP would also remove the intentional checks and balances between the role of Natural England and the Secretary of State. I confirm that, as it stands in the Bill, the Secretary of State referred to is that for MHCLG, but clearly Defra and MHCLG work very closely together during this process.

Natural England is responsible for developing an EDP for submission to the Secretary of State and the implementation of that EDP after it has been made. In answer to the noble Earl, Lord Caithness, the Secretary of State is accountable for determining that a draft EDP meets the overall improvement test, making the EDP and taking remedial action if delivery falls short.

Were the amendments to pass and all legal responsibilities passed to the Secretary of State, Natural England, as the Government’s adviser on the natural environment, would still need to support the Secretary of State in preparing and delivering conservation measures. However, without being named in the Bill, it would not have the necessary powers and functions to enable efficient delivery or to provide assurance of the rigour of an EDP independently of the Secretary of State.

The Bill contains many safeguards to ensure that the body, which is charged with developing and implementing an EDP, performs its role to enable development and deliver improved environmental outcomes. With these safeguards, and recognising the relevant expertise held in Natural England, we feel it is right to reflect in the Bill the central role that Natural England will play.

More broadly, I highlight that the Government are taking concerns about the efficacy of the regulatory landscape incredibly seriously and are already taking action off the back of the Corry review—I thank the noble Lord, Lord Lucas, for recognising that—to ensure that the regulatory landscape and all the relevant actors in the system are performing as effectively as possible, because we need to give greater confidence. We are already expediting several of the recommendations made by Dan Corry, and I will mention a few of those.

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[Earl Russell (LD)]

I will speak briefly to this group of degrouped amendments, which all look at various aspects of the relationship between Natural England and the scope and framework of timetables for an EDP. I will speak to Amendments 231, 249, 253C and 274. Taken together, they are about strengthening the framework for environmental delivery plans and helping to provide further clarity, safeguards and accountability. I am reading all those amendments as having a probing nature, asking questions and seeking further clarification from the Minister.

Amendment 231, in the names of the noble Lords, Lord Roborough and Lord Blencathra, and the noble Earl, Lord Caithness, seeks clarification that the Secretary of State should be able to issue guidance to Natural England or any designated authority on how an environmental delivery plan is prepared. I assume this is about ensuring consistency across the country, setting clear frameworks for public consultation and providing further protections.

Amendment 249, in the names of the noble Earl, Lord Caithness, and the noble Lord, Lord Blencathra, is about adding detail and transparency. This amendment would require environmental delivery plans to be monitored and to show their scientific basis, alignment with local policies and the timeframes for addressing environmental impacts. Again, this is about making sure that plans stand up to scrutiny and deliver measurable results.

My noble friend has already spoken to Amendment 253C, in the name of the noble Lord, Lord Lucas, so I will note the comments that have been made already.

Amendment 274, in the name of the noble Earl, Lord, Caithness, would require Natural England at the outset to define the measures it believes necessary and to invite expressions of interest for their delivery from persons or organisations.

Finally, Amendment 277A, from the noble Lord, Lord Blencathra, would limit the number of EDPs Natural England is expected to prepare in the first two years to four in the first year and 12 in the second, and, if capacity permits, that that could be extended. I assume that this is a probing amendment. It would definitely be better if it was. I am interested in the Minister’s response to how many EDPs the Government think there is capacity for.

Taken together, as I said, these are probing amendments seeking further clarification from the Government.

[Baroness Hayman of Ullock (Lab)]

My Lords, this group of amendments considers the preparation of EDPs and what they are required to contain. Many of the amendments seek to add various matters to which Natural England should have regard when preparing an EDP. These matters include the scientific evidence base for conservation measures, how the EDP relates to local policies, the local nature recovery strategy, the land use framework and the timeframe required to address environmental impacts. The Bill, as currently drafted, alongside the government amendments that we have already tabled, requires these matters to be taken into account. I can therefore assure noble Lords that these amendments are not necessary, as these matters will already be adequately considered when developing an EDP.

Amendment 274, tabled by the noble Earl, Lord Caithness, would add three requirements to the preparation of an EDP: first, requiring the conservation measures to be used to address the environmental impact of development to be defined; secondly, creating a pre-consultation period for EDPs, during which expressions of interest to deliver the conservation measures must be sought from appropriate persons or bodies; and, thirdly, publishing the expressions of interest should the EDP proceed to be made. The first of these is already addressed in the existing provisions in Clause 55. The existing provisions also allow Natural England to delegate functions to other bodies, including those in the private sector. Specifying a particular procurement method and creating an additional pre-consultation period would be unnecessarily restrictive, given that EDPs will need to be tailored to the specific local and environmental circumstances. The land use framework and other strategies that we are developing in Defra, such as the food strategy, will obviously be part of any consideration. We all work together very closely. We talk to each other, which may surprise some noble Lords, because we want these to be delivered effectively.

Amendment 231 seeks to provide the Secretary of State with a power to issue guidance relating to the making of an EDP, specifying various topics that this guidance may cover. It would then require Natural England or any other body carrying out functions under this part to comply with this guidance. As noble Lords will be aware, the Secretary of State already has the power to issue guidance on key matters that Natural England must have regard to when carrying out functions under this part. Guidance should be used to guide Natural England, not to compel it. This would be more appropriate for a regulation-making power, which is subject to greater parliamentary scrutiny. The Secretary of State will still be able to make guidance on any relevant matter and will be able to assess the extent to which it has been applied when making the EDP.

We believe that Amendment 277A, tabled by the noble Lord, Lord Blencathra, would be unnecessary, as Natural England will operate only within its capacity when it is producing EDPs.

Turning to the concerns raised by the noble Lord, Lord Lucas, in his Amendment 253C, regarding the interrelation of the NRF model and existing biodiversity net gain arrangements, I assure noble Lords that the NRF and biodiversity net gain are distinct but complementary policies. The NRF will focus on enabling development that encounters specific environmental obligations relating to impacts on protected sites and species, whereas BNG applies to all new developments, bar the limited exceptions.

I come to the important point raised by the noble Baroness, Lady Parminter, regarding the consultation on BNG, when we would get its outcome and whether that would be before Report. It is a pertinent question, and I will take it back and look into it for noble Lords.

In answer to the noble Lord, Lord Lucas, and to give him reassurance, the NRF will not affect the existing requirement to deliver BNG. That is a free-standing obligation outside the NRF. I hope that, with this clarification, noble Lords will feel able not to press their amendments.

[Lord Fuller (Con)]

May I just ask whether the Minister would give some consideration to the question I posed: at what stage, following the pattern set out in Clause 53 and all the rounds of consultation, procurement and devising of schemes, does she think the first dwelling house will be completed and somebody occupies it? Will it be in this Parliament, or the next?

[Baroness Hayman of Ullock (Lab)]

Clearly, I cannot give a precise date to the noble Lord, but we know that Natural England has indicated that the areas on which it has substantial evidence and information at the moment—for example, nutrient neutrality and on newts—are the ones that it will move ahead for. These are the areas that it already has the information on to produce an early EDP.

[The Earl of Caithness (Con)]

My Lords, I am grateful for what the Minister said. She confirmed that the EDP will state the scientific basis for the conservation measures proposed. What happens if one thinks that the scientific basis is wrong? Given Natural England’s track record so far, how does one get to challenge that when one thinks it is wrong? That is going to be very important.

[Baroness Hayman of Ullock (Lab)]

I cannot remember whether it was in the previous debate or the one before that, but I clarified that a vehicle for challenge is available. It is there. I cannot remember if it was mentioned in the previous debate or the one before that.

[Lord Roborough (Con)]

My Lords, I am grateful for the Minister’s reply to this group. If Ministers choose to press ahead with Part 3 of the Bill, developers, local authorities and other interested parties need clarity on how EDPs will work in practice.

We are going to return to the question of private sector involvement in EDPs and the duration and timing of EDPs in later groups. I would just say that, on the guidance point, it is far from reassuring if that guidance is coming from the MHCLG on the environmental impact of these EDPs. It just seems completely wrong, and we will return to that later. In the meantime, I am most grateful to the Minister, and I beg leave to withdraw my amendment.

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[Earl Russell (LD)]

I rise very briefly to speak to this group of amendments, which are all on consultations on EDPs. Considering the time, I am going to be even more brief than I have been before. While I welcome and look forward to the Minister’s response to all the amendments in this group, I particularly support Amendment 280 in the name of the noble Baroness, Lady Coffey.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lords, Lord Blencathra and Lord Roborough, and the noble Baroness, Lady Coffey, for their amendments, which all address the consultation requirements for EDPs. Those noble Lords who have heard me speak in the House on many occasions will know that I love consultation. It is really important, but it is important that it is also done properly.

As I set out in my opening statement on the NRF model as a whole, we recognise the importance of allowing relevant authorities, businesses and individuals to have their say on the development of EDPs. It is for this reason we have included a requirement that all EDPs are subject to public consultation. We have also proposed government amendments to clarify the consultation requirements when amending an EDP.

The noble Lord, Lord Blencathra, asked a number of questions about Natural England’s planning and evaluation expertise in bringing forward an EDP. Many of his questions related directly to the planning process and such decisions would be taken by the local planning authority or, of course, the Secretary of State if it was a nationally significant infrastructure project. Looking at what Natural England’s role is, discussion with the relevant experts would of course be an important part of any development of an EDP. Natural England would use surveys and consider the best available scientific evidence to assess how developments of any given type will impact on the relevant environmental feature. This process will then allow Natural England to set a maximum amount of development which can be covered by that EDP. The Bill also gives the opportunity for this to be included in guidance.

Local nature recovery strategies are an important tool protecting nature, and I am grateful to the noble Baroness, Lady Coffey, for highlighting the important role that these can play in informing EDPs. There is already a requirement in the Bill for Natural England to consider local nature recovery strategies in preparing an EDP and a further duty to consult local planning authorities for the relevant area, which should be expected to include consideration of their LNRS. We also understand that, depending on the content of an EDP, certain sectors may have particular interests in specific EDPs, and I thank the noble Lord, Lord Roborough, for raising their interests at this stage.

Through the existing public consultation requirements, any group, business or individual—this would of course include farmers and land managers—who is affected by an EDP will have the opportunity to respond to the proposed EDP and raise any concerns. For the purposes of each EDP, it would not be practical for Natural England to go to each business in a whole sector, such as the fishing sector, due to the large number that it would need to consult. Nor would the Government wish to impose any duty or obligation to respond to a consultation on private businesses.

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[Baroness Parminter (LD)]

My Lords, in the absence of the noble Lord, Lord Krebs, I will introduce Amendment 266, which, as the noble Lord, Lord Lansley, said, is somewhat surprisingly in this grouping. It seeks to ensure that the EDP delivers a significant improvement in the ecology of a habitat, a species or an ecosystem.

I think that the Minister will say, with some justification, that government Amendment 247A in this group addresses this by making it clear that Natural England can do this EDP only if it can contribute to a significant environmental improvement. We welcome that, but I want to press the Minister a bit further on how Natural England will make the judgment that it will deliver a significant environmental improvement. How will it ensure that the information it uses is robust? The noble Baroness, Lady Willis, has been concerned in debates that I have heard her speak in about whether the modelling that it uses will be sufficient. As the noble Earl, Lord Caithness, mentioned earlier, nature does not always behave as modelling might suggest. How will Natural England make that judgment?

If the noble Lord, Lord Krebs, was here, I am sure he would thank the noble Lords, Lord Gascoigne and Lord Whitty, for supporting this amendment.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank everyone who has taken part in this debate. I begin by speaking to the government amendments in this group, Amendments 246A, 247A and 258B.

In providing flexibility through this new model, the Government have been careful to ensure that these flexibilities are used only where this supports the delivery of better environmental outcomes. That is at the heart of the new approach. Government amendments 246A, 247A and 258B relate to the use of network measures, making it explicit that Natural England can deliver network measures only where it considers that it would make a greater contribution to the improvement of the environmental feature in question than measures that address the impact of development locally. Crucially, network measures could never be used where to do so would result in the loss of an irreplaceable habitat. This would inherently not pass the overall improvement test, because the very essence of irreplaceable habitat is that it cannot be replaced elsewhere.

I turn to the non-government amendments, and first to those tabled by the noble Lord, Lord Lansley. Amendments 238, 239 and 240 seek to require an EDP to highlight all the environmental features which may be affected by development and state what the environmental impacts on the environmental feature would be. The Government have been clear that we wish to use EDPs to take a targeted approach to address the impacts of development on specific environmental features. Under this approach, an EDP could be brought forward that addresses the impact on one or more environmental feature, with conservation measures brought forward to address the impact on the identified feature. In response to the question of the noble Lord regarding the wording, this means that any features that are not identified which are covered by the EDP would then need to be considered and addressed under the existing system.

I understand the points that he is making, but the proposed amendment would then require EDPs to be comprehensive in identifying and addressing all the impacts of development on all environmental features. This was never the Government’s intention, as it would add considerable burden to the creation and delivery of EDPs. By taking a targeted approach, we can put EDPs in place to address the specific issues that benefit from the strategic approach. This will unlock development and secure better environmental outcomes. Expanding EDPs in the way proposed by these amendments would result in slowing down delivery and prevent EDPs being used in the targeted way that the Government have envisaged.

Planning and Infrastructure Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[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.

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[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.

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[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.

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[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.

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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.

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[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.

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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).

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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.

Planning and Infrastructure Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

Moved by

[Baroness Hayman of Ullock]

248A: Clause 55, page 92, line 13, leave out subsection (5) and insert—
“(5) An EDP must include conservation measures that are not, at the time the EDP is made, expected to be needed but which must be implemented in the circumstances set out in the EDP.(5A) Those circumstances must relate to the effectiveness of the conservation measures that have already been implemented, as revealed by the monitoring of the EDP (see section 76(4)(a)).”Member's explanatory statement
This amendment would require Natural England to include backup conservation measures in an EDP, in case the primary ones prove to be ineffective, and to specify the circumstances in which the backup measures will be implemented. (See also my amendment to clause 76 inserting a new subsection (4) about monitoring.)

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

My Lords, this group covers further government amendments to bring confidence that the nature restoration fund will deliver the improved outcomes for nature that are at the core of the model. At its introduction, the Bill provided the ability for Natural England to include back-up conservation measures within an EDP which could be used if the initial conservation measures were not delivering the desired outcome.

Reflecting the original intent that these back-up measures would be used where necessary, Amendment 248A makes it mandatory for an EDP to include back-up measures as well as explicitly requiring Natural England to monitor the effectiveness of conservation measures so that it knows when it is necessary for these to be deployed. In addition, government Amendment 298ZA bolsters the duty of the Secretary of State to carry out remedial measures. Should the end-point report or the report following revocation contain an assessment that conservation measures are not likely to or have not passed the overall improvement test, this amendment requires the Secretary of State to take proportionate action to address any shortfall in environmental outcomes, whether the EDP is revoked or it reaches the end date.

Finally, the amendments make a series of minor legislative fixes and consequential amendments necessary for the correct operation of the legislation following these substantive government amendments. I hope that the Committee will support these amendments, and I beg to move.

[Lord Roborough (Con)]

My Lords these amendments brought forward by the Minister draw attention to a crucial point: environmental delivery plans, if they are to carry weight and deliver real outcomes, must be more than static documents. Amendment 248A rightly calls for contingency measures, back-up conservation actions that can be triggered if the initial interventions fall short. That is not only prudent but essential if we are to treat the environmental promises made in an EDP with the seriousness they deserve. Likewise, the amendments proposing a clear duty on the Secretary of State to act where an EDP fails the overall improvement test, together with publication requirements, are in my view sensible and measured. If the regime is to maintain public confidence, there must be accountability when delivery falters.

The environmental delivery plan must not be a one-shot deal; it must be an adaptive instrument capable of responding to what monitoring reveals and supported by a credible remedial pathway if things go wrong. These proposals help to strengthen that architecture, and I hope that the Government will give them serious and constructive consideration.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lord for his supportive comments. I do believe these amendments show we have been listening to concerns. I beg to move.

Amendment 248A agreed.

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[Lord Lucas (Con)]

My Lords, I have managed to eliminate Japanese knotweed successfully several times. It requires a bit of time and a bit of glyphosate.

[Baroness Hayman of Ullock (Lab)]

I have also got rid of Japanese knotweed—I have not had much success with Himalayan balsam, though.

I thank the noble Lord, Lord Roborough, for Amendments 253, 296 and 297, and the noble Lord, Lord Cromwell, for Amendment 253B. I will consider these together because they all relate to invasive non-native species and the nature restoration fund. The Government recognise the impacts of invasive non-native species on our native species and ecosystems. As the Minister for invasive non-native species, I appreciate the noble Lords’ intentions in tabling these amendments, but they do not align with the targeted nature of the nature restoration fund.

However, I reassure noble Lords that I have a particular bee in my bonnet about how we best tackle invasive non-native species, because they can have a devastating impact on our native biodiversity. Himalayan balsam means that nothing grows at all, and it wrecks riverbanks. However, it is about not only what is here at the moment and how we manage it but how we stop more invasive species coming in. That is a huge challenge. While I am on that subject, the noble Lord, Lord Lucas, asked about the list—it is retained EU law, but we have been reviewing and amending it in order to tailor it to UK circumstances.

Amendment 253 would require Natural England to take action to eradicate the invasive non-native species that could negatively impact an EDP’s environmental features. The legislation already allows invasive non-native species control to act as a conservation measure, where this would support the action of Natural England to materially outweigh the impact of development on the relevant environmental feature. However, we should recognise that it might not always be the best option in terms of environmental impact, value for money and delivery considerations, such as the need to secure the overall improvement by the EDP end date.

Requiring action to eradicate invasive non-native species, regardless of these considerations, could delay EDPs, increase costs, and limit the ability to secure positive environmental outcomes. With these amendments, the Secretary of State would be required to revoke an EDP—even one delivering effectively for nature—because of the presence of a single grey squirrel, which does not make sense in the bigger picture. Making EDPs contingent on mandatory eradication in this way could also make them unviable. On the grey squirrel question, the noble Lord asked about the sterilisation programme. To confirm, the programme is ongoing, and is being supported by Defra.

Amendment 253B, tabled by the noble Lord, Lord Cromwell, seeks to require bodies exercising powers relating to an EDP to ensure that legal obligations under the Weeds Act 1959 are “publicised, observed and enforced”. The Weeds Act grants powers for the Defra Secretary of State to serve landowners with a requirement to remove the weeds specified within the Act, and ensures that landowners retain responsibility for their own land, instead of public bodies needing to act.

EDPs are a targeted tool to address the impact of development on specific environmental features. Introducing a broad obligation for Natural England, and others exercising responsibilities relating to EDPs, would expand the scope of EDPs, and risk diverting focus from their core purpose. The noble Lord, Lord Cromwell, and others discussed ragwort. I assure the noble Lord that there is nothing in this legislation that would preclude Natural England or others from taking action in line with the Weeds Act, such as reporting the presence of ragwort where this is encountered, or from appropriately removing such weeds where Natural England, or delivery partners, are delivering conservation measures on the ground. With these explanations, I hope that the noble Lord, Lord Roborough, will withdraw his amendment.

[The Earl of Caithness (Con)]

My Lords, I was interested in that debate, and would like to pick up what the Minister said. Given her responsibilities, could she update us on the point my noble friend Lord Roborough made about the grey squirrel? Could she be a little more specific about the up-to-date situation on that, but also on deer in general, which are causing havoc to young plantations and farmland? Those might not include non-native or invasive species, but there are far too many deer in the countryside.

[Baroness Hayman of Ullock (Lab)]

One of the main deer that cause a problem is non-native, but we will not go into that. The department is currently producing the revised deer strategy, which I am sure we can share with the noble Earl when it is produced. The noble Earl, Lord Kinnoull, is working closely with the group working on the grey squirrel sterilisation programme. I have had meetings with him and his colleagues, but I cannot provide the details of that, as it is something that they are driving forward themselves. It may be worth the noble Earl having a conversation with the noble Earl, Lord Kinnoull, and we are supporting the work that he and his group are doing.

[Lord Roborough (Con)]

My Lords, I am grateful to all noble Lords who contributed to this short debate, and particularly to the Minister for her knowledgeable answer. I add my thanks to the Minister for a meeting which she organised a couple of weeks ago with her officials. The depth of knowledge of those officials on this subject was phenomenal.

The noble Lord, Lord Inglewood, made a good point about public education. These are not adorable, furry animals, these are pests. They are causing damage to our wildlife, our trees, and to everything in our country, and people need to be aware of that. I could not agree more with the noble Lord, Lord Cromwell, about ragwort. My experience is that responsible farmers remove this as soon as they see it, and it is disappointing to see public bodies not taking that responsibility seriously.

I also thank my noble friend Lord Lucas for his points. He slightly contradicted himself; of course, it is very difficult to remove these invasive non-native species, but the point is that it is not impossible. I had the same experience with Japanese knotweed and Himalayan balsam; you can eradicate them, but you have to work at it.

I will take away the comments made in the debate, and perhaps see whether there is something we can do, in this Bill or elsewhere, to try to strengthen the defences against these. I withdraw my amendment.

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[The Earl of Caithness (Con)]

My Lords, what my noble friend Lord Roborough has said is very important. I draw the Committee’s attention to an announcement in February of this year from the Environmental Farmers Group, which comprises about 4% of England’s farmland—nearly a million acres—and over 700 farmers. Before the powers of this Bill got into print or came to this House, the Environmental Famers Group managed to reach an agreement with Natural England that satisfied Natural England and the local authority, and ended the moratorium on housebuilding between Salisbury and Christchurch. Thousands of new houses will be built as a result of this agreement, and the environment will benefit. It would be a tragedy if this Bill inadvertently started to block agreements such as that and Natural England resorted to compulsory purchase and a state attitude that it is the only one that can do it. It is vital, as the noble Lord, Lord Inglewood said, that every possible angle is kept open for the private sector in its various forms to contribute to the benefit of biodiversity, development and growth in this country.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Lord, Lord Curry, for Amendments 258, 268 and 353. These amendments speak to the role that private providers of nature services will play in the delivery of the NRF.

We share the desire of the noble Lord—and that of other noble Lords who have spoken in this debate—to support private sector investment in nature. We are clear that private and third-party providers will play a critical role in delivering the NRF. By design, this Bill allows a partnership approach to the delivery of conservation measures. This includes explicit reference in Clause 76 to paying others to undertake conservation measures. The Government expect Natural England to use competitive procurement approaches, wherever appropriate, to ensure innovation and value for money.

As the noble Lord, Lord Cromwell, said, we tried to spell this out a little better in the letter that we sent round. It explained that EDPs will provide new opportunities for the private sector, habitat banks, farmers, local authorities and environmental groups to supply nature services. Of course, local solutions are an important part of this, but I am happy to write to the noble Lord regarding processes. As part of the wider measures to support the NRF, the Government will issue guidance to natural England specifically on this point.

The noble Lord also asked about the percentage of the levy that would go to conservation measures and how much would be spent on other things. We cannot be specific on that because clearly it will depend on the nature and size of the EDP and the measures that are going to be agreed. Admin will be able to be claimed for, but the overall focus is delivering the conservation measures—that is what we want the money to be spent on. There will be charging schedules which will provide more information.

The problem with enforcing the binary choice in the amendments is that it would reduce the role for private solutions as part of the implementation of Part 3 of the Bill. My The noble Lord—I think I will call him my noble friend—Lord Inglewood rightly said that we need choices in order to have the best outcomes for nature.

On Amendments 318B and 320B, in the name of the noble Lord, Lord Cromwell, Natural England will work with private providers and landowners to deliver conservation measures. We recognise the vital role these providers will play in making the NRF a success. Restricting Natural England’s ability to deliver conservation measures itself in the way proposed would risk EDPs being unable to deliver value for money for developers where the only available and willing providers are prohibitively expensive.

We are shortly going to be discussing compulsory purchase, so I will say here that we expect Natural England to consider compulsory purchase only where attempts to acquire land by agreement have failed, and that use of Natural England’s compulsory purchase power must be authorised by the Secretary of State. I trust the noble Lord will be content not to press his amendments.

I turn to Amendment 318ZA, in the name of the noble Lord, Lord Roborough. I understand the desire for clarity on the opportunities for farmers and others to be involved in the delivery of conservation measures. As mentioned earlier, this model relies on close working with private partners and landowners, and we will publish guidance to support this. However, we are aware that local landowners know their land better than anybody else.

On Amendment 325ZA, tabled by the noble Lord, Lord Cromwell, I will be very brief. I reassure the noble Lord that this amendment is unnecessary because, where the land is available to Natural England at market value, it will already be able to pursue the compulsory purchase order as there is a long-standing requirement that compulsory purchase orders can be used only where reasonable efforts to negotiate the purchase of land by agreement have failed.

Finally, regarding the noble Lord’s questions around SFIs, to confirm, we are looking to launch a reformed scheme next year. As I know more details, I will keep the noble Lord in touch with that. With those explanations, I kindly ask noble Lords not to press their amendments.

[Lord Roborough (Con)]

Before the Minister sits down, would it be possible to share the guidance, or at least a draft of the guidance? I think it would help us to understand where we go to on Report.

[Baroness Hayman of Ullock (Lab)]

I am very happy to.

[Lord Lucas (Con)]

My noble friend should know better than to say “Before the Minister sits down”—really.

When this project gets going and we start to see how Natural England is balancing its own activities against involvement with the private sector and farmers and others, how is Parliament going to be informed as to what is going on? How will information flow to us as to how Natural England is fulfilling its role? The Minister had some very fine words in her replies, but how can we butter some parsnips with them?

[Baroness Hayman of Ullock (Lab)]

Clearly, we want to make it work. As I have said, Defra will be monitoring it closely and reports will come out on it, and I am absolutely certain that I will get questions.

[Lord Curry of Kirkharle (CB)]

My Lords, I thank the Minister for her reply and I am partially reassured by the answer.

I am trying very hard not to remain slightly cynical about Natural England’s overarching role as the controlling body that will determine what happens on the ground with each development. There might be—forgive the phrase—oven-ready solutions in local areas which get delayed significantly by the decision-making process that will inevitably occur within a bureaucratic organisation such as Natural England. I ask the noble Minister to think about whether there might be a slicker, smarter way of achieving better environmental outcomes by local actors on the ground which could be included in the Bill. I beg leave to withdraw my amendment.

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[Lord Blencathra (Con)]

My Lords, I will speak briefly to Amendment 294, submitted by the noble Baroness, Lady Grender. I apologise that I was not in the Chamber this morning to participate: I had to attend my Select Committee, especially as it was on a subject that I demanded that we investigate. Way back last June, we fixed the meeting for this morning at my convenience, so I had to be there.

The amendment from the noble Baroness would prohibit the Secretary of State from having the power to amend an EDP in a way that would reduce the measures taken to mitigate the negative environmental impact of development. This amendment touches on important points of principle, including environmental conservation and the remit of the Minister’s power. I would be interested in hearing the Government’s response.

I will also address the government amendments in the name of the noble Baroness, Lady Taylor of Stevenage, which would require Natural England to consult on the EDP when certain amendments to it are proposed. The circumstances in which the consultation will be necessary are when the proposed amendment would increase the maximum amount of development covered by the EDP, include new places in the development area or add new types of conservation measures not currently included in the EDP. It seems an important principle that amendments which would change an EDP in this way are subject to consultation. I agree entirely. Such consultations should aim to allow for relevant expertise and the voices of a variety of stake- holders to be heard. I look forward to hearing the noble Minister’s response to the amendment from the noble Baroness, Lady Grender.

[Baroness Hayman of Ullock (Lab)]

My Lords, this grouping includes further amendments that the Government have tabled to address matters raised in advance of Committee. As part of this package, the Government’s Amendment 295B clarifies the consultation requirements when amending an EDP, where the intent had always been to ensure that consultation was taken forward where it was proportionate to do so. This will ensure that, where an EDP makes a significant amendment, measured by its meeting certain criteria, there will now always be a requirement to consult on that amendment, so that the public and expert stakeholders are able to contribute to and comment on the proposals.

Government Amendments 295C, 295D and 295E contain minor legislative fixes and a consequential amendment necessary for the correct operation of the legislation following the substantive government amendments. I hope that the Committee agrees to accept these amendments, and I commend them.

I turn briefly to the non-government amendment, Amendment 294, tabled by the noble Baroness, Lady Grender, which would make it impossible to amend an EDP when that amendment would in any way reduce or weaken the conservation measures it contains. While I absolutely appreciate the concerns that she has rightly raised, the amendment would substantially restrict Natural England’s flexibility to make crucial amendments to EDPs, which may include reducing both the amount of development and the conservation measures contained in an EDP. For example, we would want to ensure that, if an expected development was not actually going to come forward, an EDP could be amended to reflect this and reduce the scale of conservation measures, in line with the reduction of impact from the development.

I also note that all significant amendments will now need to be consulted on. All EDPs will continue to need to pass the overall improvement test following any amendment. I therefore hope that the noble Baroness agrees to withdraw her amendment.

[Baroness Grender (LD)]

I thank the Minister for her response. She will understand that we are attempting to prevent what happens over custom and time, which is always the weakening of something such as an EDP. We will examine her words carefully and meet with her between now and Report to make a bit of progress on this. Meanwhile, I beg leave to withdraw my amendment.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Earl, Lord Caithness, for his Amendments 319 and 320, which seek to amend Clause 73. These amendments specifically seek to ensure that those paid by Natural England to deliver conservation measures have the right level of expertise.

I understand that it is of course important that appropriate expertise and an appropriate person are deployed in the delivery of conservation measures. The Bill contains measures to ensure that the conservation measures within an environmental delivery plan deliver the necessary environmental improvements, with further safeguards included in the amendments that the Government have proposed.

Without the necessary expertise to deliver conservation measures, Natural England simply cannot comply with the requirements set out in the Bill when procuring conservation measures from third parties. The overall improvement test, as amended, will ensure that, when making an environmental delivery plan, the Secretary of State has confidence that the effect of the conservation measures will materially outweigh the negative effects of development. That includes confidence in the delivery of the conservation measures. Natural England will need to demonstrate that high integrity and standards will be applied in the procurement of any conservation measures and services.

As noble Lords are aware, we have introduced a requirement for Natural England to take sufficient measures to monitor the effectiveness of conservation measures and the effects of EDPs in general. That will ensure that any non-performance is addressed.

Finally, the Secretary of State will issue guidance as needed to ensure that conservation measures are designed and delivered using the appropriate expertise. The noble Lord, Lord Cromwell, asked a lot of detailed questions about how the levy will operate. If he will bear with me, I will write to him on those issues.

Amendment 320, tabled by the noble Earl, Lord Caithness, seeks to ask for “or body” to be put in after “person”. However, I can confirm that the meaning of another person in this context includes already bodies. That is the default position under the Interpretation Act 1978. I hope that reassures the noble Earl. The Bill already delivers the spirit of the noble Earl’s amendments, so I kindly ask him not to press them.

[The Earl of Caithness (Con)]

My Lords, I am grateful to the Minister. Can she confirm that Clause 76(3) refers only to EDPs?

[Baroness Hayman of Ullock (Lab)]

I apologise—yes, it does.

[The Earl of Caithness (Con)]

My Lords, I am grateful. This has been very helpful. I beg leave to withdraw the amendment.

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[Lord Blencathra (Con)]

My Lords, several of the amendments put forward by my noble friend Lord Caithness seek to ensure that those to whom the Secretary of State may delegate power are more precisely clarified. I support my noble friend’s efforts to ensure that the legislation is as clearly drafted as possible, so that it may be enacted in the way that both Houses intend. Furthermore, under this Bill, Natural England is being conferred a variety of different powers. It is therefore important that those delegated these powers, whether individuals or bodies, are appropriate. As a result, I am supportive of my noble friend’s amendments, and I am sure the Government will provide them with the necessary attention they deserve.

Amendment 343, also proposed by my noble friend, calls for the establishment of an independent body to oversee Natural England’s powers and duties. I support the principles behind such an amendment as transparency and accountability are essential requirements for effective government. I am therefore supportive of some of the ideas included in the amendment, such as requests for information, transparent reporting and independent monitoring. I hope the Government take this amendment seriously as well.

I also thank the noble Lord, Lord Cameron of Dillington, for his Amendment 328. It is a probing amendment to ascertain which people the Government envisage taking on the responsibilities of Natural England under this part, and whether they include the farmers and occupiers affected by the EDP. I am sure that the whole Committee will welcome clarification of this question, as we have addressed it in prior groups.

[Baroness Hayman of Ullock (Lab)]

The noble Earl has tabled a number of amendments that seek to amend Clauses 86 and 87. I will consider these together, as they relate to the role of Natural England and who can undertake the role of developing and implementing an EDP.

First, Amendments 326, 328, 329 and 331 seek to ensure that only appropriate persons can be designated in this role and also seek to amend or clarify who can perform this role. Noble Lords are aware that Natural England is named in the Bill as the body responsible for the preparation and implementation of environmental delivery plans. However, there may be instances where it is appropriate for another body to take on some or all of Natural England’s role. There might be a scenario where it would make sense for a different public body to do this role. In the debate on Monday, I explained, for example, that the Marine Management Organisation might take on the role for an EDP that applied to coastal waters.

Clauses 86 and 87 provide for the Secretary of State to make the necessary changes to allow another body to exercise the same functions as Natural England. Any changes by regulations made by the affirmative procedure would receive the proper scrutiny of Parliament, which would ensure that only an appropriate body could be named. The Bill has been drafted to allow this partnership approach, which includes consulting relevant local expertise—farmers and land managers, for example. We expect that farmers and land managers will be able to benefit from new opportunities to provide conservation measures and so diversify their own revenue streams.

Amendments 343 and 361 would establish an additional independent body to monitor the success of EDPs in achieving the overall improvement test. Establishing an additional body would, however, increase the burden on and cost of administration of the nature restoration fund. The fund is to be implemented on a cost-recovery basis, and this additional administration would increase developer costs through higher levy rates and divert money away from environmental delivery. However, we agree with the noble Earl that oversight is important. The Secretary of State already has oversight of the nature restoration fund, which includes final approval of all environmental delivery plans following public consultation, and the ability to amend or revoke an environmental delivery plan if it is not delivering as expected. In addition, the Office for Environmental Protection may also scrutinise and report on all matters relating to the implementation of environmental law.

On Amendments 327, 330 and 332, as I set out earlier, the meaning of “another person” includes bodies already in line with the default position under the Interpretation Act 1978. As we set out in the debate on Monday, we would only ever expect to designate a public body to fulfil the role currently fulfilled by Natural England in the Bill.

I hope I have done enough to reassure noble Lords about the safeguards that ensure the benefits for development and nature, with Natural England fulfilling the role of preparing and implementing EDPs, alongside our intentions as to who else can perform this role or otherwise participate in the delivery of EDPs. I therefore kindly ask the noble Earl to consider withdrawing his amendment.

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Finally, I thank the noble Baronesses, Lady Bennett of Manor Castle and Lady Jones of Moulsecoomb. They speak to important issues concerning contamination levels and conservation duties, which are important and worthy of the Government’s attention. I look forward to the Minister’s response to their points and my points.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank noble Lords for their contributions to this debate. I will talk first to Amendment 335, which was moved by the noble Baroness, Lady Coffey. It would require developers to establish a biodiversity baseline before development begins. Through biodiversity net gain, developers are already required to provide a site baseline, using the statutory biodiversity metric, as part of their planning application for Town and Country Planning Act developments. The biggest developers are also going to be required to do so from May next year, when it is extended to nationally significant infrastructure projects.

On Amendment 336, the Government agree that it is important that the use of offsite biodiversity gains by developers is justified. As part of the statutory biodiversity net gain framework, decision-makers need to take account of the biodiversity gain hierarchy, which prioritises, first, the onsite delivery of net gains. Again, this is distinct from the NRF, but we are not convinced that there needs to be a further duty on the decision-maker to prepare a statement justifying each offsite gain. The biodiversity net gain framework already requires a developer to provide information about why the use of offsite gains is required as part of the approval of the statutory BNG plan. It would be disproportionate to require decision-makers to prepare a further statement justifying the use and would add additional burdens on local planning authorities, especially for their ecologists, for little further benefit.

Turning to Amendment 339, which I thank the noble Baroness, Lady Grender, for tabling, I will say that the National Planning Policy Framework is clear that decision-makers should contribute to and enhance the environment by protecting and enhancing valued landscapes and sites of biodiversity value. Local plans are required to identify, map and safeguard components of local wildlife-rich habitats and wider ecological networks, including the hierarchy of international, national and locally designated sites of importance and areas identified by national and local partnerships for habitat management, enhancement, restoration or creation. Furthermore, the Environment Act 2021 introduced local nature recovery strategies, which are now being rolled out across the country.

These spatial strategies for environmental improvement are developed in partnership with local stakeholders and enable strategic authorities to agree a set of priorities for nature recovery. They also map out the most valuable existing areas for nature, which are often underpinned by other protections in the planning system, and areas which could become of particular importance for biodiversity. Strategic and local planning authorities will need to take local nature recovery strategies into account when planning for development under legal provisions in the Levelling-up and Regeneration Act and the Planning and Infrastructure Bill. Where it is appropriate for large areas of habitat to be conserved or enhanced, local nature recovery strategies provide a mechanism to do so.

Local nature recovery strategies allow local areas to determine the best opportunities to take action for nature restoration, while also planning for any development needed in the area. In February, we published guidance setting out the role of the local nature recovery strategies in the planning system, and we are exploring how we can best reflect them in policy through our wider work.

The application of planning policy through up-to-date strategic development strategies and local plans, which consider local nature recovery strategies, will ensure that local people are equipped to make decisions about where habitat enhancement and creation can drive the best environmental outcomes. Therefore, while I understand the intent behind this amendment and agree that promoting nature restoration at scale is an important objective, the legislative framework to enable this is already in place.

On Amendment 341, we recognise that ponds can deliver important biodiversity benefits, and we want to encourage them in the right locations. We also recognise the benefits of ponds for farmers, providing valuable sources of irrigation during dry periods. The noble Earl, Lord Caithness, mentioned the recent flooding; of course, things such as balancing ponds can be really helpful.

Permitted development rights are a well-established part of the planning system. For example, under an agricultural permitted development right, farmers can create ponds and on-farm reservoirs, subject to certain limitations and conditions, to manage and control impacts. Meanwhile, home owners can create new ponds in their gardens under householder permitted development rights.

Changes to permitted development rights are brought forward through secondary legislation as amendments to the general permitted development order. A public consultation would ensure that the views of the public, including those who would benefit from the rights created, are taken into account. It would also allow for consideration of any potential impacts of the proposal and how these might be mitigated.

The amendment seeks to provide a national planning permission for ponds across the whole of England, regardless of whether one would be appropriate in a particular location, such as on land used for public recreation or in an area where it could increase flood risks. To ensure that ponds are properly located, there are circumstances in which a planning application is appropriate. On that basis, we cannot support the amendment. However, I assure noble Lords that we will continue to keep permitted development rights under review.

Turning to Amendment 346, tabled by the noble Baroness, Lady Bennett, while obviously I understand the ambition to improve information on the state of contaminated land in England, I also believe that the policy intent of her proposals is largely met by existing legislation and statutory guidance.

Part IIA of the Environmental Protection Act 1990 provides a framework for identifying contaminated land in England and allocating responsibility for its remediation. It provides a legal definition of contaminated land and lays out the responsibilities of local authorities and the Environment Agency for dealing with contaminated land. These responsibilities include local authorities inspecting their area to identify where land may be contaminated, and maintaining a public register of land that has been identified as contaminated land. Local authorities and the Environment Agency are also required to ensure that “appropriate persons” remediate these sites.

Additionally, there is a statutory obligation for local authorities to report to the Government on the state of contaminated land in their area when asked to. Defra commissioned the Environment Agency in November 2024 to complete a state of contaminated land survey, and a subsequent report, and we will soon release the survey to local authorities. Regarding the noble Baroness’s question about Zane, I just want to clarify that the previous Secretary of State, Steve Reed, did meet Zane’s family, and it was following that meeting that the state of contaminated land survey was commissioned. We are looking to release it to local authorities to respond to very soon—this month—and we are aiming to publish the final report in spring next year.

Given that the existing frameworks are already embedded into legislation and guidance, Amendment 346 would cause unnecessary duplication and distraction for local authorities. Therefore, while obviously I completely appreciate the noble Baroness’s concerns, I would ask her not to press her amendment, and I will check the other questions she asked and get back to her in writing.

Amendment 345, introduced by the noble Baroness, Lady Grender, wishes to create the new category of “heritage trees” and give them further protection. The National Planning Policy Framework recognises the benefits from natural capital and ecosystem services, which trees and woodlands provide. We are clear that opportunities should be taken to incorporate trees into new developments, and that existing trees should be retained whenever possible. Moreover, development that results in the loss or deterioration of ancient woodlands or ancient or veteran trees should be refused unless there are wholly exceptional reasons, and a suitable compensation strategy exists.

Aside from these protections at national level, there are tree preservation orders, a key method of protecting trees and woodlands in England; and authorities are already expected to take into account the historic, cultural and ecological value of a tree. Local planning authorities are also required to notify relevant parties when the order is made so that they can encourage good tree management, particularly when determining planning applications. Local officers have powers to enforce protections, and an order makes it a criminal offence to cut down, prune, uproot, or wilfully damage or destroy a tree without the local authority’s written permission. Regarding the Sycamore Gap, the people who cut that down have actually gone to prison.

We are concerned that the creation of a new category of heritage trees could cause confusion and add to burdens on both Natural England and local authorities without the commensurate benefits. My noble friend asked about the Tree Council report, and I can say that Defra is working on a tree strategy, which I am sure she will take great interest in when she sees it.

Amendment 346A seeks to place an additional nature duty on forestry authorities when exercising their functions in planning, development and infrastructure on protected landscapes. We share the aims of the amendment and agree that public bodies should fully contribute to nature conservation and biodiversity recovery.

However, the objectives of the amendment are already embedded in the statutory and policy framework that forestry authorities operate within. Where renewable electricity development on the public forest estate is consented through the development consent order process for NSIPs, the national policy statements will apply, and the Overarching National Policy Statement for Energy stipulates:

“In considering any proposed development … the Secretary of State should take into account … its potential adverse impacts, including on the environment, and including any long-term and cumulative adverse impacts … at national, regional and local levels”.


Furthermore, forestry authorities already have relevant and bespoke duties applicable to all land, and this balancing duty is a statutory obligation laid out in the Forestry Act 1967, requiring them to balance their forestry-specific duties with the conservation and enhancement of natural beauty. Although I welcome the spirit of the amendment, I do not believe it is necessary to introduce this new statutory nature duty, as outlined in it.

Amendment 346DC, tabled by the noble Lord, Lord Lucas, seeks to remove potential obstacles which may arise from Sections 1 or 3 of the Wildlife and Countryside Act. We recognise the desire to clarify the position of development when it comes to exceptions from these obligations and offences towards wild birds. However, where impacts are unavoidable, development activity can already be exempted as lawful action in the existing list of exemptions under Section 4 of the Act. We will, however, carefully consider how to better manage the interactions between protected species and development both through the NRF and as part of our wider efforts to improve the regulatory landscape.

Having said all that, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Coffey (Con)]

My Lords, we have had another one of those odds and sods groups, with the desire to perhaps insert or add permitted development rights. I am sure that the Minister will recognise my disappointment about what she said about ponds. She will be aware that this is the only opportunity for Peers who are not Ministers to try to get some secondary regulations through and enacted. I am conscious that there was sufficient encouragement for many others in the aims of trying to improve nature, which is what many of the amendments were about. With that, I beg leave to withdraw Amendment 335.

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[Lord Roborough (Con)]

My Lords, these amendments address the critical interface between planning law and the protection of our sensitive natural environments governed under the habitat regulations.

Amendment 350, which I have signed—I should really have signed Amendment 349 too, which I also support—proposes a new Part 1A to the habitats regulations, placing scientific evidence at the centre of decision-making. That principle is vital. All too often, planning decisions are mired in ambiguity and subjectivity, which, in turn, creates delay and a window for opportunistic challenge. These amendments would create a framework that distinguishes between material and de minimis effects, gives due weight to credible science and offers clarity for both developers and conservation bodies. That said, we must take care that the new language, particularly around decisions not requiring absolute certainty, does not inadvertently weaken precautionary safeguards. It is a fine balance and one we will want to explore further.

I imagine that I am fortunate not to have read the article in the Telegraph today, so I am completely comfortable with the amendments. The only thing from the introduction of the noble Lord, Lord Hunt of Kings Heath, with which I did not entirely agree is the idea that nature has to suffer. A lot of the debate we are having around the Bill is about how to make sure that nature suffers as little as possible and how to mitigate that in the hierarchy. I believe that these amendments can be part of that.

That goes to the broader debate that we on these Benches have been having throughout the discussions on the Bill about why we have Part 3 at all. When we started debating the groups on Part 3, we offered a number of amendments to deal with nutrient neutrality, two of which, taken together, would have released 160,000 houses immediately after the Bill commenced. I am still not clear how EDPs will release those houses from the blocking guidance from Natural England.

The noble Baroness, Lady Young of Old Scone, has tabled a number of amendments that would significantly restrict the extent of EDPs, which I also support. In all the amendments I have mentioned and which the noble Lord, Lord Hunt of Kings Heath, has brought forward today, there are solutions which, frankly, would be far better than Part 3 for speeding up development, increasing certainty and reducing costs. I therefore support these amendments.

[Baroness Hayman of Ullock (Lab)]

My Lords, government Amendment 349A in this group makes a minor legislative fix, inserting the correct definition of the Ramsar site series into the habitats regulations.

I turn to the non-government amendments and the debate we have just been listening to. The noble Lord, Lord Ravensdale, and my noble friend Lord Hunt of Kings Heath have tabled a number of amendments concerning the operation of the habitats regulations. I wish to add some detail to comments I made in Monday’s debate in response to amendments seeking to limit the disapplication of the habitats regulations to the specific features and impacts identified in the environmental delivery plan. This is an important point which is relevant for today’s debate.

As I said on Monday, the disapplication in Schedule 4 already applies only to the specific impacts of the development identified in the EDP. I want to set out how this could work in practice. If a development proposal comes forward that has three different impacts on protected features—for example, nutrient pollution, recreational disturbance on ground-nesting birds and an impact on dormice—there might be two EDPs covering the area where that development is located, each addressing strategically the impacts of development on one of those environmental features. In this scenario, the developer may choose to discharge its obligations in relation to the two environmental impacts covered by those EDPs through payment of the relevant levy for each. The remaining impact would continue to be assessed in the usual way, either through the habitats regulations assessment or by applying for a species licence. With the other two impacts being addressed through the EDPs, the remaining assessment would be more focused and streamlined.

I want to be clear that it would remain necessary to consider any effects not covered by an EDP. This is by design. EDPs are intended to be modular, with each one addressing a specific impact or impacts. They are not intended to be a comprehensive way of addressing all the possible environmental impacts of developments. I hope that helps to clarify.

I come to the specific amendments that we have been debating. I know that noble Lords have been concerned that EDPs might not deliver for infrastructure, so they have proposed these amendments to improve the operation of the existing system. Our focus in bringing forward the measures in this Bill has been on ways to practically improve the planning process. Case-by-case negotiations of mitigation and compensation measures often slow down the delivery of much- needed housing and infrastructure, as the noble Lord, Lord Ravensdale, explained in his introduction. The nature restoration fund will allow developers to benefit from a streamlined process and simple user experience, while delivering better outcomes for nature. The Bill is also clear that EDPs can be brought forward to support nationally significant infrastructure projects.

The Government already plan to address, through improved guidance, many of the points made in the amendments and by noble Lords. Although I note the desire for an open conversation about wider reforms to the habitats regulations, noble Lords will recognise that amendments of the type proposed go far beyond the NRF and would benefit from proper scrutiny and consideration. Although many in the Committee may favour the spirit of some of these amendments, legislating in this manner at this late stage of the Bill would risk a period of significant uncertainty for practitioners and a potentially negative impact on development that we would all wish to avoid.

I turn to Amendment 346DA. I thank the noble Lord, Lord Ravensdale, for raising the important issue of energy security. I wish to clarify that, through the overarching energy national policy statement, nationally significant low-carbon infrastructure is recognised as critical national priority infrastructure. In relation to such projects, the Secretary of State will start with a presumption in favour of granting consent. It is recognised that it is likely that the needs case for this infrastructure will outweigh the residual effects in all but the most exceptional cases, and we are already seeing positive impacts of CNP infrastructure. The current overarching national policy statement for energy also confirms that, where there are no alternative deliverable solutions to mitigating the impact of the NSIP on sites subject to habitats regulations assessments, then compensatory measures are still required.

Delivery of compensatory measures is an important part of protecting our network of protected sites, where damage to a site is unavoidable and where there is an overriding public interest. For offshore wind, as the noble Lord, Lord Ravensdale, explained, there are particular issues around the identification of suitable compensation, and the marine recovery fund will provide an optional mechanism which developers can pay into to discharge their environmental compensation obligations. In addition, for offshore wind, Defra recently consulted on changes to the environmental compensation requirements and intends to introduce a statutory instrument to deliver these changes. Where an environmental delivery plan is in place under the nature restoration fund, this will enable developers to fund strategic, Government-led conservation measures.

Amendments 349 and 350, tabled by my noble friend Lord Hunt of Kings Heath, and Amendment 349B, tabled by the noble Lord, Lord Lucas, would fundamentally alter many of the well-established principles of the current regime. While the Government understand and support many of their intentions, the focus of Part 3 is to establish the nature restoration fund and create a tool to address the environmental impact of development. Expanding the scope of the Bill in this way, as I said before on the other amendments, risks introducing uncertainty into the system and could slow the consenting of development. Several of the amendments also raise questions in respect of how they guard against environmental regression and significant harm to protected sites.

We feel that such significant changes to the habitats regulations assessment process would be better addressed following greater scrutiny, including from affected stakeholders. However, they raise a number of very important points about the operation of the habitats regulations. To take two specific points, decisions should be made on the basis of the best available scientific evidence and the habitats regulations assessment process should be applied appropriately and proportionately.

Government amendments to Part 3 include clarifying that both Natural England and the Secretary of State will take account of the best available evidence when preparing, amending or revoking an EDP. However, introducing legislative definitions of “scientific evidence” or “scientific justification”, as proposed by these amendments, needs careful consideration to understand the impact of such changes and to avoid the risk that we introduce unnecessary uncertainty and increased litigation in this area.

Dan Corry’s review, which we have mentioned in previous debates, also suggests a potential reform to the habitats regulations and how they are applied, while ensuring consistency with international obligations. I can confirm that we are looking at how to improve the operation of the existing habitats regulations. We are preparing updated guidance on the assessment process, and the noble Lord’s amendment rightly addresses the role that guidance can play in encouraging a proportionate application of that process. The noble Lord, Lord Lucas, may also wish to note in relation to his amendment that the guidance will make clear the flexibility that exists in order to screen out the de minimis effects where it is clear that there is no risk of harm to the integrity of the protected site.

I supported much of what the noble Earl, Lord Russell, said, and the approach that he suggested—that we need to be much more considered and take more time over some of this. We will of course continue to consider ways in which the operation of the habitats regulations can be improved, while protecting our most valuable habitats and species, at the same time as providing more certainty and an efficient process for developers. On that basis, I hope noble Lords will not press their amendments but continue to work with us on this important matter.

[Lord Ravensdale (CB)]

My Lords, I am very grateful to the Minister for her summing up and the extra information that she provided, particularly the important clarity around NSIPs and Part 3. However, we have not yet got away from the central issue of how useful Part 3 is going to be for major infrastructure projects. I appreciated what she said on guidance, but, clearly, we need to go further in what is laid down in statute. Coming back to Amendment 350, we are talking about minor changes to the regulations, to bring us back to their original intent and to clarify the existing law. I certainly look forward to further discussions with the Minister and other noble Lords on this as we go towards Report. With that, I beg leave to withdraw the amendment.

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[Baroness Hayman of Ullock (Lab)]

My Lords, Amendments 351A and 351B, tabled by my noble friend Lady Young, would require regulations containing consequential amendments made under the power in Clause 89 to be subject to the super-affirmative procedure. Although I wholly agree that it is crucial that regulations receive the appropriate level of scrutiny, the super-affirmative procedure is intended to provide for statutory instruments considered particularly important or complex.

I want to assure noble Lords that any amendments made under this power would be limited to either consequential or technical changes that are required to ensure the proper functioning of the system. I trust that noble Lords would agree that use of the procedure for such amendments is not likely to be an effective use of parliamentary or government time. Therefore, I hope my noble friend will agree not to press her amendments.

Amendment 356, tabled by the noble Baroness, Lady Coffey, would require that the Secretary of State responsible for carrying out all relevant functions under this part be nominated in the Bill as the Defra Secretary of State. The noble Lord, Lord Lansley, said in an earlier debate that it would be unusual to explicitly set out in legislation which Secretary of State is being referred to, as this could risk confusion down the line if, for example, departments or portfolios changed. I take the point that the noble Baroness made. In addition, it will generally be up to the Government of the day to agree which Secretary of State was best placed to use which powers.

In the case of the powers in question, we recognise the role the Secretary of State for Defra needs to play in the nature restoration fund. To reassure noble Lords, and as I clarified this morning, we would expect the Secretary of State for Defra to lead on the consideration and approval of EDPs as the NRF is established. However, we do not want to put this specifically in the Bill, partly because of the precedent it sets but also because there may be certain circumstances where it is appropriate for another Secretary of State to carry out functions under this part. I cannot give the noble Lord an example because we do not expect it to be a frequent thing. It would have to be looked at specifically at the time if there were circumstances that meant another Secretary of State would have the knowledge and the expertise required to make the judgments and the assessments that were needed. Just in case that could happen, we do not want to remove the possibility by specifying the Environment Secretary purely in isolation in the Bill. I hope that noble Lords will agree not to press their amendments.

Planning and Infrastructure Bill

Baroness Hayman of Ullock Excerpts

Report stage
Wednesday 22nd October 2025 Lords Chamber

Moved by

[Baroness Hayman of Ullock]

68: After Clause 51, insert the following new Clause—
“Provision of advice by Natural England to public authorities(1) The Natural Environment and Rural Communities Act 2006 is amended as set out in subsections (2) and (3).(2) In section 4 (advice)—(a) after subsection (1) insert—“(1A) Natural England is not required by subsection (1) to give advice in response to a request to which subsection (1B) applies that is made by a public authority other than a Minister of the Crown.(1B) This subsection applies to a request for advice relating to—(a) a specific development that requires, but has not been granted, planning permission under section 57 of the Town and Country Planning Act 1990 (“the 1990 Act”),(b) an application for any consent, agreement or approval required by a condition imposed on a grant of planning permission required under that section,(c) permission in principle for a specific development under section 58A of the 1990 Act, and(d) the approval of a reserved matter within the meaning of section 92 of the 1990 Act.(1C) Natural England may give advice in response to a request to which it is not required to respond as a result of subsection (1A).”;(b) in subsection (2), after “(1)” insert “or (1C)”.(3) After section 4 insert— “4A Supplementary provision(1) Natural England must prepare and publish a statement setting out how it intends to deal with requests for advice which it is not required to give as a result of section 4(1A).(2) Natural England must review the statement before the end of—(a) the period of five years beginning with the day on which it is first published, and(b) each successive period of five years.(3) Natural England may review the statement more than once during any of those periods.(4) Natural England may revise the statement following a review.(5) Natural England must publish any revised statement.(6) Before publishing a statement (including a revised statement) under this section, Natural England must—(a) consult the Secretary of State, and(b) make any changes to the statement that the Secretary of State may require in response.(7) But the duty in subsection (6) does not apply in relation to the publication of a revised statement which, in the opinion of Natural England, contains no substantial revisions.(8) The Secretary of State may require a change as mentioned in subsection (6)(b) only if the Secretary of State considers that the change would promote Natural England’s general purpose.”(4) The duties imposed by section 4A(6) of the Natural Environment and Rural Communities Act 2006, as inserted by subsection (3), may be satisfied by consultation carried out, and changes made, before this section comes into force.”Member's explanatory statement
This new clause would permit Natural England not to respond certain to requests for advice under section 4(1) of the Natural Environment and Rural Communities Act 2006, and require it to publish a statement about how it intends to deal with requests to which it would no longer be required to respond.

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

My Lords, there are two government amendments in this group. I will introduce government Amendments 68 and 262 and respond to the other two amendments at the end of this debate.

Government Amendments 68 and 262 seek to provide Natural England with discretion when considering how best to deal with requests for advice from public authorities relating to planning applications under the Town and Country Planning Act 1990. Currently, the Natural Environment and Rural Communities Act 2006 requires that Natural England must provide advice to all requests from public authorities, regardless of the level of environmental opportunities or environmental risk related to the project. This requirement exists despite the Town and Country Planning (Development Management Procedure) (England) Order 2015 already setting out a narrower scope for when Natural England should be consulted on planning applications for Town and Country Planning Act casework.

Amendment 68 removes this “must” requirement and provides that Natural England must produce an operational statement setting out how it intends to deal with such requests for advice in relation to Town and Country Planning Act casework. This approach will avoid Natural England having to provide advice to routine and duplicative casework and instead allow it to prioritise higher-risk and higher-opportunity casework. This will help to resolve issues up front, which will speed up decision-making and embed opportunities for nature recovery within plans and projects. It will also allow growth and nature to be delivered together.

In parallel, Natural England will continue to expand its suite of standing advice, providing local planning authorities with easier access to guidance from the outset. This helps to avoid unnecessary consultations and ensures that engagement is focused where bespoke advice is most valuable. It also brings the requirements on Natural England in line with those on other statutory consultees, which are not required to provide advice to all queries.

In 2024, Natural England wrote to all local planning authorities setting out its aim to focus effort on higher- risk and higher-opportunity planning casework. This amendment supports this strategic shift, which Natural England welcomes. Crucially, this does not remove Natural England’s advisory role but refocuses it from handling large volumes of low-risk casework to more strategic engagement that can deliver greater environmental impact. This aligns with government ambitions as set out in the Written Ministerial Statement by Matthew Pennycook MP in March. This stated a need to reconsider the means of engagement and provision of expert advice, and that in some cases this could be done through undertaking more effective strategic engagement at local and strategic level, reducing the need for comments on individual planning applications. This corresponds with recommendations made by Dan Corry in his independent review of Defra’s regulatory landscape.

To provide clarity for local planning authorities, the amendment would require Natural England to produce an operational statement that sets out how it intends to deal with requests for advice relating to Town and Country Planning Act casework. This will make it clear to local planning officers and authorities how they can expect to receive Natural England advice. This operational statement would be produced in consultation with the Defra Secretary of State. Natural England will provide further information to local planning authorities on the implementation of this change in due course.

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[Lord Roborough (Con)]

My Lords, I draw the House’s attention to my register of interests as a landowner and a housing developer. Before addressing this group of amendments, I would like to ask the Minister whether her Government have considered the impact of the Supreme Court judgment in the CG Fry case that was released today. This question is relevant to this and other debates we will have today and in later days on Report in your Lordships’ Chamber. For the benefit of the House, the judgment found that Ramsar sites impacted by development do not have the protection in law previously assumed to derive from the habitats regulations.

From that I have several questions. If the Minister does not yet have answers, I wonder whether she would be able to write to me before the next day of Report or perhaps comment in a later group. We know that this decision releases 18,000 housing units in the Somerset Levels alone. Of the 160,000 units currently blocked nationally by Natural England advice on nutrient and other neutrality, how many are due to Ramsar and how many to European designations, where the rules still apply? In other words, how many houses nationally have now been released from blockage by nutrient neutrality rules?

The Bill, as drafted, imposes the legal obligations of the habitats regulations on Ramsar sites. Therefore, the effect of the Bill now becomes to block housing development rather than allow it. We on these Benches will seek to amend the Bill to remove this effect. My Amendment 208 would take Clause 90 out of the Bill, and I will table further amendments as needed. Have the Government’s intentions towards Clause 90 and Schedule 6 now changed as a result of this ruling? On these Benches, we are delighted with this ruling as it releases much-needed supply into the housing market. I hope the Government are equally delighted as it is a step towards their target of 1.5 million houses. It also highlights the issue that the small nut that is being cracked by the sledgehammer of Part 3 of this Bill has just been shrunk even further, and we will return next week to the many questions around Part 3.

I turn to the amendments in this group and begin with government Amendments 68 and 262. We are satisfied that it is appropriate to reduce the obligations of Natural England as a welcome streamlining of the planning process.

Amendment 194 in the name of my noble friend Lady McIntosh of Pickering is important, and we would welcome clarity from the Minister in her response that the intent is that Natural England’s powers can be delegated only to public bodies and which bodies those might be. We agree with the noble Baroness, Lady Young, that it should say public bodies in the Bill. We will oppose the powers being given to Natural England in this Bill as they risk creating an authoritarian empire. The idea that these can then be delegated to private sector entities or potentially unsuitable bodies really is intolerable, and we will return to this later, if necessary, in my Amendment 195.

Amendment 200 in the name of my noble friend Lord Lansley is a sensible amendment that would allow for better planning of EDP requirements. I look forward to the responses from the Minister.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank all noble Lords who have taken part in this debate. I will first go through the responses to the government amendments, and I thank the noble Lord, Lord Blencathra, for his support.

My noble friend Lady Young and the noble Baroness, Lady Parminter, both asked why we feel this amendment is needed now. I remind noble Lords that Natural England currently receives around 22,500 town and country planning consultations every year. Many are low to medium risk and about 30% of them do not actually need Natural England’s input because they either fall outside the statutory remit under the development management procedure order or do not relate to its general purpose as set out in the NERC Act.

The noble Baroness, Lady Parminter, specifically asked what problem this was trying to solve. It is mainly because, over the last decade, the volume of planning casework received by Natural England has increased by 75%. There is nothing lurking behind it—it is just the huge amount of extra work that Natural England now has to deal with. Because of this, there is less time available for the work that makes the most impact, such as shaping local plans, advising on major infrastructure and protecting nature where the risks are greatest.

My noble friend Lady Young and the noble Baroness, Lady Parminter, both asked about local authorities. We are looking to work with LPAs in advance of any change coming through and work through the details of exactly how it is going to work and what it is going to mean for them, so we are involving local authorities.

Regarding access to sufficient ecological advice, Natural England will continue to provide advice to local planning authorities in cases where bespoke advice is necessary, which will include any high-risk and high-opportunity casework. In addition, Natural England will still be required to provide a response under the development management procedure order, which is not affected by this amendment. This includes where a development is likely to affect a SSSI or would involve the loss of more than 20 hectares of best and most versatile agricultural land. However, local planning authorities are ultimately responsible for assessing the environmental impacts of individual planning applications in line with relevant planning policy and legislation, and this will remain unchanged.

The noble Lord, Lord Roborough, asked specifically about the Supreme Court judgment in the Fry case, which was handed down this morning. We are very grateful to the Supreme Court for the clarification. We will continue to drive the delivery of the homes and infrastructure the country needs but, as we move forward with the Bill we are debating today, we are clear that the planning system has to do everything it can to support sustainable development. On his more detailed questions, the judgment was only this morning so we need time to analyse the decision; I am sure we will be coming back to this.

I turn to the other amendments in this group. Amendment 194, tabled by the noble Baroness, Lady McIntosh, would provide that only a public body could be designated to exercise the functions of Natural England under this part. Obviously, we have discussed this previously and debated it in Committee. While I absolutely recognise the noble Baroness’s concerns, I reassure her that the policy expectation is that this power would only be ever used to designate a public body to carry out such functions. However, as the noble Lord, Lord Lansley, mentioned, sometimes there could be unforeseen circumstances where it could be appropriate for a private body to take on some functions under this part. My noble friend Lady Young and others asked about examples. As I said in Committee, it could be national parks, the MMO and others as appropriate. The noble Baroness reminded us of the examples I had given earlier. This is not to do with shifting decision-making away from Natural England and has nothing to do with it not having the capacity. It is entirely to do with expertise and having the most appropriate body making these very important decisions. That is why we do not want to remove the possibility of it going to a private body. However, our expectation is that it would always be a public body because it would be unusual for a private body to have an expertise that a public body did not.

[Baroness McIntosh of Pickering (Con)]

The reason for bringing the amendment back is that we do not seem to have moved on from Committee stage. If the expectation is that it will be a public body, then I go along with what the noble Baroness, Lady Young, said, that it should be in the Bill. I also support what the noble Baroness, Lady Bennett, said, that there are circumstances in which it would be entirely inappropriate for it to be given to a private company.

[Baroness Hayman of Ullock (Lab)]

That is why the delegated powers are subject to the Secretary of State’s authorisation. It is not just Natural England’s decision; it is subject to the Secretary of State’s authorisation and the use of the powers is subject to the affirmative procedure so that Parliament would have a say in any proposed designation. That is why I hope that the noble Baroness will understand that the ongoing role of Parliament will be sufficient and allow her not to press her amendment. This is not just about a Natural England decision; it is really important that that is clear.

[Baroness Young of Old Scone (Lab)]

I know this is against the rules on Report, but I think this is such an important issue. I do not understand what the Government are saying now because the Bill is very clear. It actually says that the Secretary of State will make decisions about who the powers will be delegated to, not Natural England. If it was Natural England doing it, I would be entirely content. That is not what the Bill says at the moment, so I am unclear as to exactly what the Minister’s last couple of sentences mean.

[Baroness Hayman of Ullock (Lab)]

I was trying to clarify that it is the Secretary of State.

[Baroness Young of Old Scone (Lab)]

Is the Minister saying that the Secretary of State will consult on this and that Parliament will be given an opportunity to comment?

[Baroness Hayman of Ullock (Lab)]

What I am saying is that any delegated powers from Natural England are subject to the Secretary of State’s authorisation and that the use of this power is subject to the affirmative procedure, so Parliament would have a say in any proposed designation. I hope that is clear.

I will now turn briefly to Amendment 200 tabled by the noble Lord, Lord Lansley, which would add a duty on local authorities to inform Natural England, when making development plans, of potential sites for development that may require an EDP. As we mentioned in Committee, Natural England is already required to have regard to relevant development plans when producing an EDP. We have also ensured that local authorities will be required to co-operate with Natural England during the process of preparing an EDP, which will ensure that information on site allocation can feed into the design of EDPs. We share the noble Lord’s desire to ensure that EDPs dovetail into the wider planning system, and I understand where he is coming from with this amendment, but we believe that placing a further duty on local authorities to provide such information is unnecessary, given that the Bill requires Natural England to proactively consider such plans when designing an EDP. On that basis, I trust that the noble Lord is content not to press his amendment.

Amendment 68 agreed.