Planning and Infrastructure Bill

Earl of Caithness Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[Baroness Coffey (Con)]

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

[The Earl of Caithness (Con)]

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

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


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

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

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


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

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

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

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

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


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

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

[The Earl of Caithness (Con)]

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

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[Lord Randall of Uxbridge (Con)]

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

[The Earl of Caithness (Con)]

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

[Baroness Young of Old Scone (Lab)]

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

“The Secretary of State may make the EDP”—


that is, approve it—

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

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

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[Baroness Taylor of Stevenage (Lab)]

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

[The Earl of Caithness (Con)]

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

[Baroness Taylor of Stevenage (Lab)]

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