Levelling-up and Regeneration Bill

Lord Benyon Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

Moved by

[Lord Benyon]

230A: After Clause 128, insert the following new Clause—
“Biodiversity net gain: pre-development biodiversity value and habitat enhancementIn Schedule 7A to the TCPA 1990 (biodiversity gain in England)—(a) in paragraph 5(4), after “6” insert “, 6A, 6B”;(b) after paragraph 6 insert—“6A If—(a) a person carries on activities on land on or after 25 August 2023 in accordance with a planning permission (other than the planning permission referred to in paragraph 5(1)),(b) on the relevant date, development for which that other planning permission was granted—(i) has not been begun, or(ii) has been begun but has not been completed, and(c) as a result of the activities the biodiversity value of the onsite habitat referred to in paragraph 5(1) is lower on the relevant date than it would otherwise have been,the pre-development biodiversity value of the onsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.6B (1) This paragraph applies where there is insufficient evidence of the biodiversity value of an onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A. (2) The biodiversity value of the onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A is to be taken to be the highest biodiversity value of the onsite habitat which is reasonably supported by any available evidence relating to the onsite habitat.”;(c) in paragraph 10—(i) in sub-paragraph (1), after “habitat enhancement” insert “of an offsite habitat”;(ii) after sub-paragraph (1) insert—“(1A) For the purposes of sub-paragraph (1) (and without prejudice to paragraphs 3 and 4(1)), a habitat enhancement is calculated as the amount by which the projected value of the offsite habitat as at the end of the maintenance period referred to in section 100(2)(b) of the Environment Act 2021 exceeds its pre-enhancement biodiversity value.(1B) The pre-enhancement biodiversity value of an offsite habitat is the biodiversity value of the offsite habitat on the relevant date.(1C) The relevant date is—(a) the date on which the application is made to register the land subject to the habitat enhancement in the biodiversity gain site register, or(b) such other date as may be specified in the conservation covenant or planning obligation.(1D) But if—(a) a person carries on activities on an offsite habitat on or after 25 August 2023 otherwise than in accordance with—(i) planning permission, or(ii) any other permission of a kind specified by the Secretary of State by regulations, and(b) as a result of the activities the biodiversity value of the offsite habitat is lower on the relevant date than it would otherwise have been,the pre-enhancement biodiversity value of the offsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.”;(d) in paragraph 12(1), after the definition of “onsite habitat” insert—““offsite habitat” means habitat which is not onsite habitat;””Member’s explanatory statement
This amendment inserts a new Clause in the Minister’s name which makes provision about the valuation of the pre-development biodiversity value of an onsite habitat and of the enhancement of the biodiversity of a habitat for the purposes of Schedule 7A to the Town and Country Planning Act 1990.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I beg to move Amendment 230A, and I will speak to Amendment 309B. These make clear the Government’s commitment to ensuring that biodiversity net gain achieves its intended positive outcomes for nature. They seek to reduce incentives for site clearance on development sites and on sites generating off-site units.

Biodiversity net gain is a flagship government policy. Officials are working closely with stakeholders to prepare for its implementation. It will mean that new developments improve nature and, as its name suggests, will be a net gain for nature. We have heard concerns raised that developers would be incentivised to clear habitats prior to the submission of a planning application or site survey. We have brought forward government Amendments 230A and 309B to address this concern.

The Environment Act already requires the use of a historic baseline of on-site habitat for sites where habitats have been degraded. These amendments go further and ensure that a precautionary approach to the baseline habitat for these sites must be undertaken when sufficient evidence is not available.

These amendments also seek to close a potential loophole in legislation. Currently, a site could be cleared under an existing planning permission, even if the development and biodiversity gains of this permission were not completed. Then, a new permission could be applied for, using the cleared site as the baseline for BNG purposes. These amendments will prevent this.

The amendments also ensure that habitats will not be cleared in advance of delivering habitat creation off-site in order to sell biodiversity units. Without these amendments, an area of off-site habitat could be cleared and then recreated and sold as habitat enhancement. These amendments will prevent this by requiring that pre-enhancement measurements of biodiversity are registered before any activity that lowers the biodiversity value.

Noble Lords will note that these amendments will apply retrospectively, back to the date of tabling. We have secured law officer agreement to this approach, which is important to make sure that people do not use the period between now and the commencement of these provisions to reduce their habitats’ baselines. I hope noble Lords will see how important these amendments are in addressing these concerns within the existing BNG framework.

I go on to thank my noble friend Lord Randall of Uxbridge for tabling Amendment 282M and the supplementary Amendment 288C. I am pleased to continue the conversation about the importance of these treasured landscapes. Having thoroughly considered Amendment 282M, we are content to accept it in principle. Protected landscapes are crucial delivery partners for so many of our goals for nature, climate and rural communities. We agree that their management plans should be enhanced and that the contribution of partners should be bolstered. This amendment takes a balanced, proportionate approach to achieving these aims. We have a wish to consider any technical drafting amendments that may be required to ensure that the amendment operates correctly in practice. The Government are therefore undertaking to bring forward a similar amendment at Third Reading. This will ensure that protected landscapes organisations continue to be at the heart of our work to unleash rural prosperity and create a network of beautiful, nature-rich spaces that can be enjoyed by all parts of society. This will be supplemented by our upcoming protected landscape outcomes framework and updated guidance, further delivering the Government’s response to the landscapes review.

I take this opportunity to extend my and the Government’s continued thanks to Julian Glover and his panel for this superb piece of work. I also thank my noble friend Lord Randall for his tireless work on this matter, which I know is dear to his heart. With that commitment, I hope my noble friend will not move his amendment and will agree to work with us as we take this forward to, in principle, the same amendment at the next stage.

[Lord Randall of Uxbridge (Con)]

My Lords, I should first declare some interests. When I spoke on the swift bricks amendment in the name of my noble friend Lord Goldsmith the other night, I was so excited that I forgot to declare them. I hope I can make an apology. I have many conservation interests, including as a councilman with the RSPB—particularly relevant to the swift bricks—and, for consideration later today, as a member of the advisory board of River Action, which might give noble Lords an indication of where my interests will lie this afternoon.

I also have some good news. My noble friend the Minister has given me some, which I will come back to, but mine is this: I am losing my voice. I think that will be generally approved of on all sides of the House.

I know my noble friend has been working tirelessly and I thank all those members of the Government in the two departments—the Secretaries of State and the Ministers, as well as many others—who have got us to where we are today. In particular, apart from thanking Julian Glover, who, as my noble friend said, did this excellent review, I thank two strong allies on this from across the Chamber: the noble Baroness, Lady Jones of Whitchurch, who tabled the original amendment in Committee when I was elsewhere, occupied in hospital, and the noble Baroness, Lady Willis of Summertown. Their support has kept me going.

I know that I have begun to sound like a record with a needle stuck in it, but I think it has paid off. I thank everybody concerned with this. National parks and areas of outstanding natural beauty are what we are about, and biodiversity in those areas is depleted. I am pleased that the Government have recognised this and the need for legislation.

--- Later in debate ---

[Lord Benyon (Con)]

My Lords, I will respond to a couple of the points made. First, my noble friend Lord Randall probably took my place on the advisory board of River Action UK, from which I had to resign to take this job. I wish him well in that organisation.

My noble friend Lady McIntosh raises a point she has raised with me before. There are duties on national parks and AOBs to support the local rural economy, and this is very much in line with that. The Glover review was very clear on that, but I will continue to give her the reassurances I can.

To the noble Baroness I say that we have a whole range of different planning requirements and strategies that seek to hardwire green infrastructure into new developments. Biodiversity net gain incentivises developers to find as many sites within those schemes and to green them as much as they can, and, where they cannot, to find other locations to do that nearby. Some will have to be traded on biodiversity credit schemes to be further away, but the key point is that this is a net gain for nature. This is making sure that, from now on, we will see a different approach, which will recognise how nature has been depleted in the past and seek to work to the Government’s very demanding ambitions to reverse the declines in nature by 2030, and to see the continued meaningful protection of land.

I live in an AOB and entirely accept the points that the noble Baroness, Lady Willis, has made, on frequent occasions, that if these areas are to contribute to our 30 by 30 target, they have got to be nature-rich—we have to reverse those declines—and lead the way. We hope that these policies will do that.

Amendment 230A agreed.