Wednesday 17th September 2025
(1 day, 21 hours ago)
Lords ChamberPlanning and Infrastructure Bill 2024-26 View all Planning and Infrastructure Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 110-VIII Eighth marshalled list for Committee - (16 Sep 2025)
Baroness Hayman of Ullock
“(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.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I am unable to call Amendment 248B by reason of pre-emption.
Member’s explanatory statement
This amendment would be a drafting correction so that subsection (6) refers to “the environmental impact of development” which is the defined term in subsection (8).
Lord Roborough
“(9) Where an EDP identifies environmental features that are likely to be negatively affected by any invasive non-native species that is present at the site of the development, Natural England, or a body acting on behalf of Natural England, must take all reasonable steps to eradicate the invasive non-native species that has been identified at the site.”Member's explanatory statement
This amendment seeks to protect all environmental features identified as at risk by invasive non-native species.
Lord Roborough (Con)
My Lords, in moving my Amendment 253, I will also speak to my other amendments in this group. It is an embarrassment that in our small, wealthy island nation, there are, according to APHA, over 2,000 non-native species, of which 10% to 15% become invasive and pose a serious threat to our biodiversity and environment. We must make intensive efforts to control and eliminate those species to protect our own besieged biodiversity.
The grey squirrel has pushed the red squirrel out of much of our woodlands and now destroys countless young trees every year, making it almost futile to plant native broadleaves in my home county of Devon and many other parts of the UK. What progress is being made with the research into the sterilisation of grey squirrels, and when will that treatment be expected to be made generally available?
Himalayan balsam and Japanese knotweed have invaded our river systems, displacing our native flora and upsetting the ecology for animals and fish living in those waterways. I commend the Tamar invasives group for the work it has done in controlling these invasive plants under the auspices of the Tamar Valley National Landscape in that area. What similar work is being done elsewhere in the country to eradicate these species?
Signal crayfish are present in many waterways and reservoirs, spreading disease that kills our native crayfish and predating on our migratory and freshwater fish species. Muntjac deer are spreading rapidly across our country, feeding on our crops, damaging fences and stripping the bark off young trees. Numbers are out of control.
The purpose of these amendments is twofold. The first is to raise awareness of the damage that these and other species are doing to our environment. The Government need to change attitudes to these animals, birds and plants so that everyone in this country takes steps to eliminate them from their gardens, farms and land.
The second purpose is equally serious. I cannot see how any environmental delivery project funded by this new nature restoration fund can be judged to be successful if non-native invasive species are still present on the land within the project after five years. It simply does not make sense that the EDP can have done an acceptable job on the site if those species remain in place, attacking our much-loved trees, brown squirrels and aquatic species.
Should the Committee support this amendment, I fear there is a risk that Natural England could then choose sites that are not infected with those species. Can the Minister assure the Committee that would not be the case? I think that all who know and love our beautiful countryside appreciate how difficult a task it would be to achieve this even in these limited areas, but it is not impossible, and it is crucial. I look forward to the noble Lord, Lord Cromwell, introducing his own amendments. I beg to move.
Lord Cromwell (CB)
My Lords, I start by confirming my support for all three of the amendments in the name of the noble Lord, Amendments 253, 296 and 297. However, I caution the use of “non-native”; it is the invasive aspect that is the problem. What could be more English than a rose? What could be a more typical English fruit than an apple? Both of them originate from central Asia—they are not natives. However, I entirely take the point about invasive species.
Amendment 60, already debated, referred to guidance on planting along highways. There was much discussion about trees and wildflowers. I enjoyed reading what type of tree the noble Lord, Lord Moylan, might represent, which might repay people who want to look it up in Hansard. One plant that grows along our highways which was not mentioned in the earlier debate is ragwort, the bright yellow flowering plant seen everywhere alongside our highway network. Through lack of enforcement of existing legislation, this invasive plant has become a menace to the environment, animals and agriculture, and action to control it is long overdue. Once it has flowered, ragwort produces seeds that, like dandelions which people may be more familiar with, come with a downy parachute which means they float far and wide on the breeze across the countryside and into farmland, where they take root, produce more seed, and so on.
Ragwort is poisonous to livestock, and it is not advisable for people to touch it with their bare hands, although I spend many unhappy hours pulling it up myself with my own bare hands, as I am sure many other Members do. Grazing animals leave it alone while it is growing, but where a field is cut for hay or silage, as is the case on many grassland farms, it gets incorporated into the bales, animals cannot detect it, and they are poisoned by it. Finally, areas set aside for environmental benefits, such as margins for wildflowers, quickly become choked with ever-expanding stands of ragwort.
So much for the biology; what about the law? Ragwort is what is called a notifiable weed, and landowners and occupiers have a legal obligation to control and remove it, particularly if it is spreading, causing a nuisance, or posing a risk to livestock. The Weeds Act 1959 and the subsequent code of practice on how to prevent the spread of ragwort outline these responsibilities. Failure to comply can lead to legal action, and/or the relevant authorities can issue a clearance notice requiring action to be taken to remove it. Unfortunately, this has not been enforced for many years.
As part of my research in tabling this amendment, I asked a Written Question about notices or prosecutions in the last 12 months. I was informed:
“In the past 12 months, no notices in relation to ragwort control have been served to National Highways, and there have been no prosecutions under the Weeds Act 1959 or the Code of Practice”.
I would bet that we could go back a lot more years than the last 12 months and the result would be exactly the same.
That is not good enough. Defra and the Environment Agency need to enforce the existing law and regulations. The Bill will create new areas of land controlled by a quango. This amendment specifically identifies this problem plant and requires that at least in the development of new infrastructure, proper controls are carried out, and—my favourite theme—enforced where necessary. That would be a start.
Lord Lucas (Con)
My Lords, I would like to speak on behalf of the Cinnabar moth, a very handsome creature which is nourished on ragwort. Ragwort is an ordinary part of the downland scene. It is an entirely natural, native plant in its right place. I agree that it can become a pest in some other places, but our downland is grazed by horses. They have the sense not to eat the thing, and we do not make hay out of it.
It is a plant that, in its ordinary place, you can work your way around. It is where someone leaves a field derelict, and it becomes a sea of yellow and the seeds are drifting everywhere, that something needs to be done about it. I agree with the noble Lord, Lord Cromwell, that we should be better, but we should not be too frightened of ragwort. It is not hugely disastrous for agriculture or livestock, in my experience of it.
Lord Cromwell (CB)
I invite the noble Lord to spend a series of weekends with me and my family pulling up ragwort across the organic grassland, which we bale for organic dairy farmers. After that, he may consider that ragwort is fine in his backyard but that, for those who are trying to feed the nation, it is a serious problem. Our livestock do leave it alone—he is quite right that they have the good sense to eat around it—but once it is baled and dead, they eat it.
Lord Lucas (Con)
The prospect of spending weekends with the noble Lord, Lord Cromwell, seems well worth some ragwort pulling.
I also sound a note of caution in respect of the amendments tabled by my noble friend Lord Roborough, as they are drafted, particularly Amendment 296. Animals such as the grey squirrel and the muntjac come and go as they please; you cannot eradicate them from an area. You can try pushing them back, but we are stuck with them until we develop a national solution. You should not penalise an EDP because it happens to be infected by them.
Also, are we referring to the list that is generated by retained EU regulation 1143/2014 when we are referring to invasive non-native species? This list consists mostly of things that are troublesome in much warmer climates. A lot of things that cause problems for us, such as sycamore, would not be included at all.
I am cautious. It is hard to eliminate invasive species from waterways. Unless you control the whole waterway and have a really integrated, careful and expensive campaign over several years, it is very difficult to do more than just reduce. By and large, we should learn to live with these invaders. I say this as a lifelong botanist. We have; we enjoy and celebrate the thousands of plants which have come to live here, mostly courtesy of gardeners, and which play a small part in the native flora.
There are very few plants that cause a huge problem in terms of invasiveness. Animals can be difficult. Insects are difficult but really hard to control. Anyway, when it comes to the flora of this country, we should recognise what we mean by “native”. If we go back to the ice ages, you are talking just about birch and a bit of Scots pine. The ice ages crushed the European temperate flora against the Alps. As a result, we have a really depleted flora in Europe compared with China or North America, which both had southern refuges that their flora could get to. You really see that in the case of forestry; we have 30 woody species in this country. Every year or two, a disease threatens another of them. I am starting to lose my mature oak trees to acute oak decline, having lost a lot of ash and all the elm.
A healthy temperate woodland has hundreds of species in it. That a few are finding their way back from gardens, diversifying and getting us back to a level of diversity that we ought to have is to be celebrated. Instead of this fuss about what is non-native, let us celebrate the immigrants. Surely the party opposite agrees with that.
Lord Cromwell (CB)
Without referring back as far as the ice age or taking as long as that to talk about it, my amendment relates specifically to one plant. Is the noble Lord suggesting that we do not apply the existing legislation? That is what my amendment seeks—merely to apply the law as it stands now through enforcement, not to create new law.
Lord Lucas (Con)
My Lords, where it is troubling serious agriculture, yes, we should enforce.
Lord Inglewood (CB)
My Lords, on the grounds of “it takes one to know one”, it is worth noting that this is a debate that we are unlikely to have in the next Session of Parliament—old-style hereditary Peers’ contribution to the governance of this country.
I will talk briefly about invasive species. I declare an interest as a landowner in Cumbria. It has always seemed to me that the real problem in dealing with the ones that are pests, of which we can all think of a number—Himalayan balsam, Japanese knotweed and so on—is that those of us who want to see them rolled back have never managed to capture the hearts and minds of the country. It is no good just doing it yourself, as I think the noble Lord, Lord Lucas, said. I suggest to the Government that they should think in terms of trying to enrol the nation on this particular crusade.
I say this because my contributions towards our local red squirrel group may be endangered, although I hope they will not be, by reduction in support for my agricultural enterprises, because there is less money going round. There might be ways of incentivising those involved in land management, possibly with a little financial contribution as part of a wider package, to make some of these things happen. I will leave it at that, other than to say that if anybody wants to see an extreme example of a reservoir with a whole group of invasive species in one place, they should travel by train from Preston to Manchester and look out the window. They all seem to be there on the verge of the railway line.
Lord Cromwell (CB)
On a lighter note, the noble Lord introduced the issue of hereditaries; many of us are indeed invasive species as we came over with the Normans.
Lord Sentamu (CB)
I say to the noble Lord, Lord Lucas: does he want to accept these invasive plants? What about Japanese knotweed, which is in the schedule of wildflowers and illegal to perpetuate? Once it takes root, it is very difficult to get rid of. If it is cut, tiny things will spread. Is he still in favour of Japanese knotweed?
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.
Lord Cromwell
“(9) In designing, creating, implementing, monitoring or enforcing any EDP, Natural England, or any other body undertaking some or all of these functions, must ensure that legal obligations concerning notifiable weeds under the Weeds Act 1959 and the associated Code of Practice, including ragwort, are publicised, observed and enforced, including ensuring that all reasonable steps are taken to remove and destroy such plants.”Member’s explanatory statement
This amendment clarifies the legal obligation on landowners and occupiers to report, control and remove notifiable weeds on land acquired for an EDP. The amendment specifically refers to ragwort, which is poisonous to livestock and has spread rapidly in recent years.
Lord Cromwell (CB)
I hope that Defra will take into account the need to enforce the existing legislation when public bodies are running EDPs, because many public bodies are not doing so at the moment. On that basis, I do not move my amendment.
Lord Roborough
“(4) When considering the rates or other criteria to be set out in a charging schedule in the course of preparing an EDP, Natural England must not include any potential capital costs for the purposes of acquiring land.” Member’s explanatory statement
This amendment prevents Natural England from including Compulsory Purchase Order costs within their budgeting for an EDP.
Lord Roborough (Con)
My Lords, in moving Amendment 256 I will speak also to my Amendments 313, 315 and 317 in this group. These concern the use and governance of the nature restoration fund levy. This is a large group of amendments, so I will use what time I have available at the end to address other amendments. My amendments aim to reinforce the principles of fairness, transparency and proper fiscal stewardship in the deployment of levy funds, ensuring that the mechanisms intended to restore nature do so in a way that commands public trust and delivers tangible environmental outcomes.
Amendment 256 seeks to prevent Natural England from including the costs associated with compulsory purchase orders in its budgeting for environmental delivery plans. The use of CPOs should be the absolute last resort, not a built-in assumption or a line item in standard budget planning. Including such costs up front risks normalising compulsory acquisition, an approach which is both confrontational and potentially costly to the public purse. It also discourages collaboration with landowners, many of whom are keen to play a voluntary role in restoring our natural environment. This amendment therefore promotes a partnership-led model of land restoration rather than a heavy-handed and bureaucratic one.
Amendment 313 builds on this principle by explicitly prohibiting the use of levy funds for land acquisition via compulsory purchase. The nature restoration levy is paid by developers—and ultimately by the public—with the promise that it will support direct and measurable environmental benefits. Using those funds to acquire land through force undermines the voluntary market-based ethos behind the levy and risks reputational damage to the scheme. We must be clear that the levy should support restoration, not legal battles over land.
Amendment 315 would ensure that funds raised through the NRF levy are not squirreled away for indefinite or speculative future use. Money raised should be deployed promptly and transparently to deliver nature recovery now, not be locked up for uncertain projects that may or may not materialise in years to come. The public and contributors deserve to see timely, tangible benefits from these contributions, especially in an era of growing scrutiny over the effectiveness of environmental spending.
Finally, Amendment 317 provides the Secretary of State with the necessary regulation-making power to return surplus or unused funds to contributors. This is a basic fairness measure. Where funds have been raised in excess of what is needed, or where they cannot be spent appropriately, it is right and proper that they be returned. Without such a mechanism, we risk creating a one-way system of financial extraction without accountability. I hope noble Lords will recognise that, taken together, these amendments strengthen the integrity of the nature restoration levy by ensuring that it remains targeted, proportionate and fair. I beg to move.
The Earl of Caithness (Con)
My Lords, I have added my name to my noble friend Lord Roborough’s Amendment 313 and will speak to that and to my Amendments 311, 316 and 318. I hope my noble friend’s Amendment 313 is an easy one for the Minister to accept or at least confirm that the situation will not take place at all when it comes to compulsory purchase orders.
On Amendment 311, I have three items I would like to see included in the regulations. Two refer to the mitigation hierarchy. We discussed that at some length on Amendment 245, so I will not say anything more about that. One of the items I would like to add to the regulations is that they should require Natural England to consider a delivery hierarchy, such that preference is given to those bodies and persons implementing the EDP. I believe that will encourage the private sector to take its appropriate share of the work of EDPs and keep the money with the people who actually manage the land, tend it and care for it, not just for 10 years of an EDP but for the future generations as well.
Amendment 316 seeks to clarify the legal obligations or liabilities of other parties, such as landowners and farmers, in accepting NRF funds delivered to the EDP. Amendment 318 seeks to provide further clarity on the involvement of an appropriate body, not just a public authority. I hope the Minister will be able to confirm exactly what is meant in the Bill on that point.
Lord Gascoigne (Con)
My Lords, I wish to speak to a whole raft of amendments in my name in this Marshalled List: Amendments 307, 308A, 309, 310, 312 and 314. All are designed to ensure that the money raised through Part 3 for the nature restoration fund is actually spent on nature recovery rather than bureaucracy and process. This should concern us all because, as we have discussed repeatedly, Part 3 establishes what I see as an elaborate and quite ambiguous mechanism which does, in effect, carve out some developers from certain responsibilities.
Overall, my general approach to legislation is that it needs to be as comprehensive, clear and coherent as possible. We should not seek to keep things vague on purpose, because all that does is create problems, issues and delays down the line. Yet, as drafted, I fear that the Bill leaves a huge amount open to legal interpretation and case law. I am not speaking to any agency, body or department—perhaps it is more a reflection of human nature itself—but my experience is that where there is an ambiguous process, there is a tendency for government and others not to feel as much pressure on the need to deliver cost-effectiveness. On something as bold as this scheme, I fear that there is a likelihood of going through copious administrative procedure to mitigate litigation risk. Obviously, these copious administration procedures cost, and I suppose the ultimate question is: is it fair that nature pays that cost?
These amendments seek to limit the power of Natural England to take a cut from the fund at the expense of nature. I am sure that some will balk at this concept and ask where the money comes from, but that is not the debate here. I am seeking to ensure that the funds raised from developers are spent on their proper purpose. We should recognise that Natural England already has generous provisions allowing for it to charge fees for licenses and other work through Section 11 of the Natural Environment and Rural Communities Act 2006.
Amendment 307 seeks to limit the amount that Natural England can charge in accordance with those existing provisions. Could the Minister explain whether they no longer see those existing provisions as sufficient to recover legitimate costs for Natural England?
Amendment 309 seeks to ensure that any charges taken are used to work within the same local authority boundary. I am grateful to the noble Lord, Lord Teverson, who, sadly, is not in his place, for adding his name to the amendment. The amendment makes it clear that the levy raised must be spent within the same planning authority from where the levy originated. I am happy to discuss my reason for tabling the amendment, and there can be debate about whether it is too narrow in its definition. As currently drafted, however, the money raised from one site can be spent anywhere. I am blessed, as I am sure the noble Baroness, Lady McIntosh, will agree, to have been born in God’s own county of Lancashire. More recently, I confess, I have moved somewhere else. Hypothetically speaking, there is nothing in the Bill, as drafted, for a site to be taken out of where I live in Surrey now—
Lord Gascoigne (Con)
I know. There is nothing to prevent the EDP deeming that the money raised should not go to replace or improve something near what I have lost, but rather could be spent in beautiful Lancashire. As a result, while my family up there may gain from that benefit, people in Surrey would lose the benefit twice. They lose the site within scope of the development, and they lose the money that should be there to rectify that loss.
Finally, I will speak to Amendment 308A, which seeks to prevent other departments, but mainly the Treasury, effectively siphoning off money for non-related uses. Clause 71(5)(d) allows for Natural England to pass moneys collected under the levy to another public body. Indeed, it goes so far as to say that it would require Natural England to pass it to another public authority. A little later, the rather gloomy entry of Clause 72(7) says:
“The regulations may permit or require a public authority to collect any nature restoration levy charged by Natural England”,
the implication of which is worthy of debate in itself. Which public body do the Government foresee taking on this role if not Natural England? I will leave that to others if they wish to go down that route.
This amendment protects the funds to wherever these moneys may go. It means, ultimately, that their original purpose shall remain. I think everyone can unite around this, from sceptics of the Bill to those supporting it, because it means that money for nature should remain for nature and not be subsumed into a general pot. I am afraid I have the scars from working in government and know all too well what happens if things are not ring-fenced clearly.
As an aside, there is a precedent here. The other day—I cannot remember when—we discussed the community infrastructure levy, and the 2010 regulations include a ring fence to ensure that the income spent is on infrastructure, no matter who is doing the spending. That is in Regulation 59, if noble Lords wish to check. Ultimately, the nature restoration fund needs to be protected and clearly defined in the Bill, and not allowed to be open to interpretation or postponed to secondary legislation.
The remaining amendments in this group in my name, namely Amendments 310, 312 and 314, all seek to tighten further the accountability and transparency around any decision by Natural England to fund its own administrative activities from the nature restoration fund.
Lord Cromwell (CB)
It was a pleasure to follow the last two speakers, as they adroitly picked their way through the thickets of these various amendments. I will briefly touch on theirs before getting to mine. As regards Amendments 256 and 313, where land is CPO’d from its owner, it is manifestly unfair to include in the levy the cost of acquisition. It is reminiscent of the victim of an execution being made to pay for the bullet. As regards Amendments 307, 312 and 314, I support clear limits being set on the ability of quangos—particularly quangos in a monopoly situation—being able to overegg their charges.
Amendment 307A in my name requires Natural England to provide a proper budget breakdown for the use of levy funds requested from a developer. Indeed, it is hard to imagine how a required levy could be quantified in any other way. In the event that there is an underspend of the developer’s levy, then the amount not spent to meet the purpose of the levy should be promptly returned to the developer. It has always been my understanding that the specific purpose of the levy is to enable the offsetting of environmental degradation caused by specific developments. Such environmental degradation is to be defined, calculated and quantified by Natural England or its appointees to arrive at a numerical amount of the levy sum payable by the developer. Natural England has confirmed to me that that sum will in each case include an amount for contingency. That is a normal part of any budgeting process for what could be a complex project.
Where the system departs from normal practice is: what happens to any unspent funds once the quantum of environmental benefit that the developer has paid for is achieved? When I asked Natural England executives about this, they told me to my great surprise that any unused funds would simply be kept by Natural England and spent on unspecified further work. The levy amounts are likely to be substantial. It is not unreasonable to anticipate millions of pounds in some cases. To allow Natural England to retain any unspent funds for its own purposes flies in the face of standard contractual practice. It is also an open invitation to overprice the levy for any project as a means of generating revenue for Natural England above and beyond what is reasonably required for the agreed environmental benefits.
Baroness Parminter (LD)
My Lords, in the absence of the noble Lord, Lord Teverson, who had to go back to Cornwall this afternoon, I speak to his Amendment 301A, which is very simple and straightforward. It basically makes the point that the money that the developers pay should go to the schemes that they are expecting to come to fruition and should not be used by the Government, as too often happened in the past, to reduce the core funding of the department or, in particular, that of Natural England.
The noble Lord, Lord Teverson, was hoping that the Minister might be able to give from the Dispatch Box some reassurances that that would not be the case, and equally—although I know the Government cannot ring-fence—that the Treasury will not try to claw back any of the additional money that has gone to Natural England for funding of the delivery of the EDP, when developers had given it in good faith.
The noble Lord very much wanted to support Amendment 309, in the name of the noble Lord, Lord Gascoigne. I do so too—and not just because I am a resident of Surrey.
Lord Fuller (Con)
My Lords, we are really getting under the bonnet here, looking at the minutiae of the EDP, and we are missing the bigger picture.
I speak in support of the noble Lord, Lord Cromwell, on Amendment 307A, and Amendment 256, in the name of the noble Lord, Lord Roborough. We find ourselves in this situation because the organisations with the statutory duties, powers, staff, income and systems to clean up our rivers, in so far as nutrient neutrality is concerned, have not been doing so. Defra, the Environment Agency, Natural England, the water companies in particular and the drainage boards are all in scope. They have got their job, but they have not been doing it.
I am concerned about the levy. We are talking about how we are going to charge this levy, but we are not really talking about where the money is coming from to deliver the EDPs. In effect, Part 3 lets these statutory undertakings off the hook. Instead, it falls to those people who do not have the powers or responsibilities, such as councils and local developers. If my noble friend Lady Neville-Rolfe was in her place, I am sure she would intervene and tell us that it will also fall to the small builders and small companies that spend money in local supply chains and so on. Here, we have the ultimate moral hazard; it is the reward for failure.
I do not deny that the costs of these EDPs could be apportioned appropriately across the canvas that is required for the purposes of the EDP and in proportion to the number of units it is going to sell. However, I am disappointed that the Bill does not require those with the responsibilities—Defra, the Environment Agency and so forth—to have the first pull. It is an omission, and one we should place on the record and return to later on Report.
I want to question the noble Lord, Lord Cromwell. He talks about the surplus. In a previous group, I explained how I have been involved in this for some time. There will be no surplus, because we are talking about 80-year tail liabilities. The money that is ponied up front to deliver an environmental improvement is going to have to be jam-spread over 80 years, in the case of nutrient neutrality, or 30 years, in the case of biodiversity net gain, and whatever other regulations come along. We are not going to know whether there is enough money in the kitty until year 79. I do not think this is fully understood.
Other noble Lords in previous groups have given numbers. Earlier, the noble Earl, Lord Caithness, spoke about £1,900 versus £2,300, and he was concerned—on the current account, if you like, or this year’s P&L—what the extra margin might be. But there has been a fundamental misunderstanding of how the accountancy works. That is why I wanted to explain it in an earlier group, and why I will talk about it in a later group when we get to private involvement. We need to have proper accounting standards for how we will approach accounting for these 80-year tail liabilities.
Nevertheless, until we do, when we are setting this levy it should be on the basis that those who are required to and paid to do this work should carry the first burden. Otherwise, small family building businesses will be cross-subsidising the large water companies which raise business water rates and should be upgrading their own sewage plants. Instead, the owners and purchasers of new homes—young families trying to get their foot on the ladder—are, in effect, going to be cross-subsidising. EDPs should be explicit in asking those who are paid and have the duty to do this work to do it first, and then, if there is any requirement left over thereafter, that has to be apportioned to the developers and, in due course, passed on to the purchasers of new homes.
In this group we have really only scratched the surface as regards the costs, accountancies and financial models. We need to do a lot more work on this, otherwise the money will run out in year 42 or 52. It does not really matter when, because we are not going to get to year 80, and, in the meantime, the costs of EDP and annual inspections, renewals and accountancy and everything else have not been factored in at all. This is not at all straightforward. As we get to Report, we will have to dig much more deeply into who pays, who should pay, and how we are going to value these tail liabilities. It is almost an actuarial problem. Until we do that, there will be no money to go back to anybody.
Lord Cromwell (CB)
Very briefly, I found that a fascinating exposition and would happily discuss it further outside the Chamber with the noble Lord. The logical corollary of it is that it is therefore almost impossible to calculate what the levy should be, because you are dealing with unknowns into an 80-year period. But let us not discuss it now—let us move on.
Baroness Young of Old Scone (Lab)
My Lords, I agree—let us not discuss it now.
Amendment 309A in my name may not be required, but I would like some reassurance from the Minister. As currently drafted, the Bill outlines Natural England’s role under the nature restoration levy in spending funds and in monitoring the implementation of the EDPs—monitoring, as it were, the inputs and actions that are needed under the EDPs. There is no explicit duty as far as I understand—but I would like clarification —to ensure that the plans result in real ecological improvements and outcomes on the ground. By that I mean not just whether the EDP has done was it said it would but whether it has delivered the goods as a result of those actions. My amendment would make sure that Natural England had to demonstrate that the outcomes planned were being delivered and the plan was working.
The only requirement I can find—I am sure the Minister will say that this is sufficient—is that the EDP reporting requirements that are laid on Natural England in Clause 62 already ensure that it will report on whether the conservation measures are having or have had their intended effect. It would be good to have confirmation that she believes this means that it has to report on outcomes.
Baroness Coffey (Con)
My Lords, I am supportive of my noble friend Lord Gascoigne’s amendments, and will speak also to those from my Front Bench.
There are a couple of factors in this. The Treasury hates ring-fencing, because, right now, it pretty much controls every penny that leaves the Government’s hands, whether it goes off to local government or similar. Other departments then want to try to control money that is coming out of existing government departments and how that should or should not be done, and so conventions start to happen within government. That frustrates, at times, the very purpose the levy is there for in the first place. There is precedence, as has already been said by my noble friend Lord Gascoigne, in CIL and the Act that brought that in.
There are other aspects. The amendment in the name of the noble Lord, Lord Teverson, would make sure that this is additional money. It basically says that Natural England should not become self-financing and that every single penny raised should go to nature restoration.
Like my noble friend Lord Gascoigne, I was born in the county of Lancashire and I am very proud of that—don’t worry, I will not start singing the cricket song. There is something to be said, building on the principle of rectification at source, for trying to have that biodiversity as near as possible. Very occasionally, there have been infrastructure projects, such as the Channel Tunnel, for which it has simply not been possible to re-create the relevant habitat for certain displaced species, and it has had to go further away. It is a bit like what HS2 found: there is no point in planting trees at the wrong time of year, not watering them and then finding that—what a surprise—70% of them are dead. More money is spent on fixing the problem, instead of sorting it out in the first place. There is an element of co-ordination involved here, which I think Natural England is reasonably well-placed to do.
When we were setting up the BNG pilots, local developers sometimes could not do it, and there was then an opportunity to buy national credits. The department and Natural England were very keen for Natural England to be the only body to have this national pot, but I ensured that a few more bodies were available. It is important to have not necessarily competition but a variety of people who can provide this, as opposed to resource constraints becoming the great determining step or not helping progress. I come back to the Environment Act 2021 and its species abundance target for 2030.
There are other examples. It might be surprising to hear that the Treasury regularly holds back over a billion pounds from the collection of the apprenticeship levy, which it will often use to pay for various training here and there. Nature is too important. I thought it was no longer the Cinderella of the climate and nature environment, but I am afraid that it is back in that sad era. We need to ensure that it receives its fair dues, which is why I support the amendments in this group.
Lord Framlingham (Con)
My Lords, I wish to make a brief intervention. In terms of infrastructure, nothing has had a more devastating effect on the countryside and nature than HS2—for no purpose at all, which is very sad. The point I wish to put to the Minister relates to compulsory purchase orders. I do not know whether she is aware that the farmers have been paid only 90% of the value of the farmland taken for HS2, which seems grotesquely unfair. I wonder whether she would take that on board and perhaps comment on it or think about it.
Lord Inglewood (CB)
My Lords, I rise briefly to support those who have argued that the levy must be spent exclusively on nature. That is what it is collected for. The Government, who administer these things more generally, have enormous resources at their disposal and they are ordaining that this is the way things will be done. As part of that, they should foot the bill for their own activities.
If I may, I will also turn briefly to Amendment 309, tabled by the noble Lord, Lord Gascoigne. I have great sympathy with it, but it might be better to include a spatial measure, rather than a local authority boundary measure, behind the approach we adopt. If we have a development very close to a local authority boundary, it may be that the right place to spend the money is just over the boundary. Equally, I have suddenly discovered that I live in the county of Westmorland, when previously I had always lived in Cumberland. The distance from Alston to Barrow-in-Furness, which are in the same county, is over 100 miles, and I think that would throw up problems.
There is also a deeper, fundamental problem, to which I do not know the answer. Part of the emotional element of the levy is that the money is to be spent on nature and environmental improvements quite close by—that is the psychology of it. As the noble Baroness, Lady Coffey, said, in cases such as the Channel Tunnel, that is not really possible. Speaking as someone from the north of England, where we have plenty of projects which could benefit from money of this kind, if all the money raised is in the south of England and cannot be spent in the north, you would find a very considerable feeling of discontent. A lot of the problems, once you get away from the immediate locality of any particular project, may well be, at the most extreme, quite a long way away.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, this group of amendments relates to the regulation-making powers governing the nature of the restoration levy. The powers provide the framework for how the levy will operate and how it will be used to unlock development and deliver nature restoration. Let me reassure the noble Lord, Lord Framlingham, that we have a whole group on CPO powers, group 9, so I am sure we will have further discussions about that then. The substance of the levy will be governed by secondary legislation, which will be laid under the affirmative procedure following Royal Assent. It is worth highlighting that, as well as receiving scrutiny from Parliament, the relevant charging schedule will form part of the consultation on each EDP, and, to reiterate, the use of an EDP will be a choice for developers.
Turning to Amendments 256 and 313, tabled by the noble Lord, Blencathra, the Government have designed the nature restoration fund to work on a cost-recovery basis, with actions required to deliver EDPs funded by the developers who use the EDP. The framework of powers ensures that the levy can be designed to achieve this aim, and that all appropriate costs can be met through the levy. This follows the polluter pays principle, as the EDP will address the negative impact from development, so it is right that these costs be met through the levy. Given the range of matters that may need to be addressed through an EDP, there may be circumstances where the acquisition of land is required. Where this is the case, it is only right that this cost be recovered through the levy, rather than through public funds, whether the land is acquired by agreement or through compulsory purchase.
While I recognise the concern around the use of compulsory purchase, these are important powers to ensure sufficient certainty that, where necessary and appropriate, land can be acquired for delivering conservation measures. This again highlights the importance of consultation on each EDP to ensure proper scrutiny before the EDP is considered by the Secretary of State.
Lord Framlingham (Con)
I am sorry to interrupt again, and I appreciate that other amendments deal with this, but the very simple principle is that if you are buying somebody’s land, you should pay a fair market price for it, surely.
Baroness Taylor of Stevenage (Lab)
The noble Lord is correct, and there are provisions for that in the process.
Turning to Amendment 307, tabled by the noble Lord, Lord Gascoigne, I note that he is a non-native species of Surrey; I hope he is not an invasive species of Surrey. His amendment would limit what administrative expenses could be included within a charging schedule to those included in Section 11 of the Natural Environment and Rural Communities Act 2006. These powers were drafted long before the NRF and extend solely to charging for providing a service and for licences. Natural England’s role in the NRF is wider than simply providing a service. It will be drafting EDPs, conducting surveys and analysis to work out the most appropriate conservation measures, and consulting on them and presenting them to the Secretary of State. It will subsequently have administration costs as part of implementation, such as contracts with service providers and administration of levy collection. Many noble Lords have also referred to the need for a proper scientific basis, and it will be important that it be able to deliver that scientific evidence.
As mentioned previously the Government’s objective is for the NRF and Natural England’s role in delivering it to operate on a cost-recovery basis, which would not be possible if we were to accept this amendment. To ensure value for money for the taxpayer, it is important that Natural England can recover all appropriate costs as part of the levy.
I turn to Amendment 308A from the noble Lord, Lord Gascoigne. We agree with the noble Lord. The Government are clear that money from nature restoration levies will be used to deliver the EDP and secure the necessary conservation measures. While Natural England will be the organisation drafting EDPs on behalf of the Secretary of State, it will not always be best placed to deliver the conservation measures, so we will work with other bodies when securing those measures. We will set out a procurement strategy in due course that will speak to the issues the noble Lord is driving at through his amendment.
When Natural England works with or through partners it will remain bound by the provision in Clause 71 to
“spend money received by virtue of the nature restoration levy on conservation measures that relate to the environmental feature in relation to which the levy is charged”.
Money used in this way cannot simply be used for other purposes. For that reason, Clause 71 still requires that this money be monitored and accounted for. On the basis that there is always a link between the levy and the delivery of conservation measures, regardless of whether Natural England is the body delivering them, I hope that the noble Lord will not press his amendment.
I turn to Amendment 309, again tabled by the noble Lord, Lord Gascoigne. As the noble Lord will be aware, the Government have tabled an amendment making it explicit that Natural England can only deliver network measures—measures that do not directly address the impact on a protected site but improve the same feature elsewhere—where it considers that they will make a greater contribution to the improvement of the environmental feature in question than measures that address the impact of development locally.
Under these proposals, Natural England will be required to state how it reached this conclusion with reference to the best available scientific evidence. Crucially, network measures could never be used where to do so would result in the loss of an irreplaceable habitat, as this would inherently not pass the overall improvement test. More generally, the amendment would limit actions within the boundary of a local planning authority that may not align with the ecological boundary of, or environmental impact on, a protected site. I trust that this speaks to the substance of Amendment 309, given that the Government’s amendment provides an ecological lock on the use of these measures by requiring Natural England to pay regard to the need to protect the overall coherence of the relevant site network.
Amendment 310, also from the noble Lord, Lord Gascoigne, would require the Secretary of State to bring forward regulations covering all the matters listed within Clause 71(3). There are many indispensable elements to the levy regulations that will be brought forward to ensure that this legislation can operate effectively. However, framing the power as a “may” rather than a “must” provides the Secretary of State with discretion when deciding whether it is necessary to bring forward specific requirements in regulations.
I turn to Amendment 312 from the noble Lord, Lord Gascoigne. The Government agree that transparency is vital throughout the EDP process. That is why the Bill already includes reporting requirements at the midpoint and endpoint of an EDP that will include information about the cost of conservation measures. In addition, Natural England will be required to publish annual reports across the NRF that will include a summary of Natural England’s accounts, with information about the total amount of levy received and the amount spent on conservation measures each year. Through this process, we are confident that there will be an adequate level of transparency in respect of both costings and expenditure.
I turn to Amendments 314 and 315, tabled by the noble Lords, Lord Gascoigne and Lord Blencathra. As I set out previously, removing Natural England’s ability to recover administrative expenses would require the Government or Natural England—and as a result, the taxpayer—to shoulder the cost of creating EDPs and any administrative costs of implementing them. Similarly, removing Natural England’s ability to include previous expenses would directly impact this and remove the Government’s ability to forward conservation fund measures to Natural England, which would then recover the money through the levy when development proposals come forward before repaying the Government. Furthermore, limiting the ability of Natural England to reserve money for future expenditure would restrict its flexibility to secure the most appropriate conservation measures and plan for unforeseen circumstances. Allowing these costs to be included within a charging schedule will ensure the long-term viability of the nature restoration fund and provide greater certainty that environmental outcomes will be achieved.
In a similar vein to previous amendments, Amendment 301A, tabled by the noble Lord, Lord Teverson, and spoken to by the noble Baroness, Lady Parminter, would require that money accepted through the nature restoration levy be classified as additional to the core funding of Defra or Natural England. I can assure the noble Lord that the legislation is clear that the nature restoration levy is provided to Natural England to deliver on the EDP and cannot be used for purposes outside the EDP. As part of this, and to ensure transparency, regulations may require Natural England to account separately for any money received through the nature restoration levy that would prevent this from being merged with central budgets.
Although the levy can be used by Natural England for administrative expenses in connection with an EDP, this must, as the drafting suggests, be in connection with an EDP. This might cover the costs of drafting and implementing a specific EDP, or a proportion of the cost of setting up a digital platform for the NRF generally, but the nature restoration levy would not affect the core budget of either Natural England or Defra, which remains a matter for the Government. With this explanation, I hope that the noble Lord will feel comfortable to withdraw his amendment.
On Amendment 307A, the nature restoration fund is being established to support development, so it is vital that the nature restoration levy does not undermine the economic viability of development while still being able to secure sufficient funding to deliver the necessary conservation measures to meet the overall improvement test. There is no legislative requirement to include contingency in the levy, as framed by this amendment. However, it is important that the regulations allow for circumstances where it may be necessary or prudent to include a precautionary buffer to support the delivery of conservation measures, whether through back-up conservation measures or simply because the primary conservation measures may cost more than originally anticipated.
Crucially, a draft charging schedule will include details of how the levy has been calculated. If a contingency were included in the charging schedule, this would form part of the draft EDP, which will be subject to consultation before being considered by the Secretary of State. While I am confident that the nature restoration levy will be set at a fair price that supports development, the use of EDPs will remain voluntary in all but the most exceptional circumstances. A developer is therefore free to use the existing system if they do not think the EDP or the levy is appropriate. Developers will have full clarity on what they are paying—
Lord Cromwell (CB)
I thank the Minister for explaining those points, but I just want to clarify something. I think that we were both at the same meeting where I challenged Natural England on this, and it assured me that there would be a contingency. For a large project, I think it is perfectly sensible to have a contingency, but when I questioned what would happen to the contingency, or indeed any unspent funds, after of meeting the required level of environmental reparation, I was assured, to my astonishment, that it would not be handed back as excess but would spend it on some more good environmental stuff, above and beyond what was anticipated for the levy. That is a sleight of hand, if I can put it in those terms, to use money that was not needed for the purpose for which it was provided for another purpose. Perhaps, at best, there is a difference in understanding between the department and Natural England, which it would be helpful to clarify.
Baroness Taylor of Stevenage (Lab)
I thank the noble Lord for that point; I will attempt to clarify that for him. There are potentially significant complexities and legal and financial liabilities introduced by requiring the return of the money with interest to developers. Given that developers will have already received the benefit they paid for, it would be more proportionate, and better for nature, for Natural England to use any excess funds to the benefit of the environmental feature. With this explanation, I hope that the noble Lord will consider withdrawing his amendment.
Lord Cromwell (CB)
I think that the Minister has just confirmed exactly what I said, which is that if there is any money left over, it will be spent on some other good stuff. That is rather unfair on the developer who has paid for something, and now the excess that was not spent is being used on something else.
Lord Fuller (Con)
I have listened very carefully. The developer knows what he has paid for. The developer has bought something. The developer has purchased an 80-year project, but he has not bought anything until year 79. I We have to get our heads around the money side and the financials—we are not going to know. I will dwell on this a bit more on a later group. The suggestion that someone has bought something and it is done and dusted on day one is a false premise; we have to understand that.
Lord Cromwell (CB)
The noble Lord and I are starting to repeat ourselves, so perhaps we can talk about it outside. However, that is not the reply that the Minister has given me.
Baroness Taylor of Stevenage (Lab)
I am happy to continue the conversation on this, but I would reiterate that it is up to the developer whether they enter into an EDP. They will have a charging schedule set out before them and, if they feel the contingency is too great, they can argue it or not take part in the EDP.
On Amendment 309A, tabled by my noble friend Baroness Young, I reassure my noble friend that the intention of her amendment is already captured. I agree that it is crucial that Natural England ensures the effective delivery of conservation measures, which is why Clause 55 sets out that the conservation measures in an EDP
“are to be taken by, or on behalf of, Natural England … to … address the environmental impact of development”,
as well as
“contribute to an overall improvement in the conservation status of the identified environmental feature”.
Lord Roborough (Con)
It is clear from the amendments in this group that there is broad consensus across the Committee on a number of key principles in the use and governance of the nature restoration fund’s levy. The first is transparency, the second is fairness and the third is value for money. The fourth is my noble friend Lord Gascoigne’s point that the funds should stay local, as far as possible. We discussed, in a previous group, the implications of that for the BNG market.
Frankly, I agree with all the amendments. The Minister has given us a very comprehensive answer to the amendments, which was helpful. There was definitely some reassurance in there about the potential for ring-fencing the NRF; I will take those away and study them further, but I suspect this might be something that we return to on Report.
I think the Committee is concerned that this could become a slush fund. We know from the water restoration fund how resistant the Treasury is to the hypothecation of funds and how keen it is to get hold of penalties to the water industry and so on. We do not want to see this turning into a slush fund used to acquire land at will by Natural England, spent on bureaucracy or even returned to the Treasury. For now, I will withdraw my amendment, but I would very much like to return to this.
Member's explanatory statement
This would be a minor drafting change to align the style of paragraph (a) of clause 57(2) with that of paragraph (aa) (as inserted by my another of my amendments to clause 57) and paragraph (b).
“(aa) Natural England’s opinion on how the conservation measures will enable the EDP to pass the overall improvement test, and”Member's explanatory statement
This amendment would require an EDP to expressly state how Natural England considers the conservation measures will enable the EDP to pass the overall improvement test.
Lord Curry of Kirkharle
“(c) which private market solutions were explored to address an environmental impact on an identified environmental feature, and why no existing and available private market solution was deemed sufficient or suitable.”Member's explanatory statement
This amendment, connected to others in the name of Lord Curry of Kirkharle, seeks to ensure that private market solutions can contribute to the implementation of Part 3 of the Bill, ensuring that developers can pursue mitigation strategies on their own sites and that private sector investment in nature is protected.
Lord Curry of Kirkharle (CB)
My Lords, I will speak to Amendments 258, 268 and 353 within this group. I appreciate the extended thinking in Amendment 320B, tabled by the noble Lord, Lord Cromwell.
I endorse the need to speed up planning and development, and I support many of the measures in this Bill to improve the process, but Part 3 remains a real concern, as we have heard already this afternoon. Despite all the reassurances—and I welcome the letter from Ministers this morning—to pay a levy to Natural England to ease our environmental conscience is highly unlikely to deliver better outcomes than locally targeted solutions. I have always been rather sceptical of off-setting. This feels very much like the same principle—pay a levy and ease your conscience. It may give developers a lot more freedom, but do we really think that a public body such as Natural England will deliver better environmental outcomes through the administration of a levy than locally contracted, locally managed, locally targeted arrangements between developers and ecologists, who will have assessed the species and ecosystems at risk and are taking appropriate actions to address the impact? Contractual arrangements and relationships have been established in recent years to address this challenge, and in many cases are working really well. It would be a serious retrograde step if these were demolished by the application of measures in this Bill and replaced by a much less effective solution.
One of my concerns is that the levy will need to be administered, as we have heard. What proportion of the levy collected will eventually be spent? Will it be 80%, 75% or 70%? Natural England is a public body, so we know that a whole new department will need to be created and we can assume that lots of bureaucracy will have to be paid for.
There will be a likely time lapse. Local market solutions can be established almost immediately by local actors and in parallel with the development. Development by Natural England is likely to take place at a much slower level—I was going to say “snail’s pace”, but perhaps that is not appropriate—and it will take years for Natural England to find sites and replace lost habitats and ecosystems. There will be a constant and ongoing environmental deficit as a consequence. Ecosystems vary within a few miles, as we know, and should be replaced as near to the development site as possible. Local knowledge is essential, and Natural England may not be as close to the action as local players.
The impact assessment of this Bill has identified many of these risks, so it is a concern not just of mine. In addition, the Bill places huge responsibility on the Secretary of State. He or she will need to spend their holidays getting on his or her bike to visit sites the length and breadth of the country to make sure Natural England is doing its job. If local solutions to replace or replicate ecological sites at risk from development cannot be identified or negotiated, we should by all means apply a levy and give Natural England the challenge. But we should allow time for local solutions to be explored first. These amendments are proposed to allow developers the opportunity to present local private market solutions before the Natural England levy is applied. In response, I suspect Ministers may state that this opportunity exists; but it needs to be an explicit requirement and an obligation of the Bill. I beg to move.
Baroness Coffey (Con)
My Lords, it is really important that we have private market solutions as a key way of delivering what we are trying to achieve. At risk of this becoming a Second Reading speech or of it being accused of that, I just want to go back a few years. The first green strategy did not mention nature at all. That was back in 2019. Then we produced the road map for sustainable investing. I managed to get in on the act when I was at DWP by talking about how pension funds should get involved in this; we had already introduced TCFD, and I hope we can get TNFD going.
Then there was the green finance strategy in 2023. It is not only for what we need to do in this country; it is the whole concept of private finance being a fundamental partner to making nature restoration real. Whether it is the GBF or the other aspects of international environmental treaties, the United Kingdom has repeatedly been at the forefront of making sure that private finance and markets are a fundamental way of achieving this.
The noble Lord, Lord Curry, is looking at me in disbelief. I am not sure if that is because I have misunderstood his amendments, or perhaps he is just surprised that I am so supportive. Nevertheless, the current Administration have also talked about the importance of private finance coming in.
There is a real fear that quite a lot is going on that will kill the private nature markets and reduce land being made available, such as for BNG—this is novel, which is why it is coming up again. I am really concerned in a variety of ways that if we end up with just a state-led solution, we will fail. The advantage of the amendments that the noble Lord, Lord Curry, has tabled is to be very clear in this legislation that it must be considered and involved.
While I appreciate that we may get, dare I say, warm words, as with much previous environmental legislation, if it is in the Bill and becomes part of the Act, then the Government will do something about it. If it is not, they will not necessarily do it, and they may resort to then apologising, perhaps years later, when it has not quite worked out how they had hoped.
The market was growing. It is still nascent to some extent and has got moving, but it is now having a bit of cold feet, and we do not want it to be enveloped by the Himalayan balsam or anything else, such as the ground elder, which is the worst in Hampshire. Therefore, we need to make sure we get that market thriving and not declining.
Baroness Young of Old Scone (Lab)
My Lords, I very rarely disagree with the noble Lord, Lord Curry, because he knows a lot, and I very rarely disagree with the noble Lord, Lord Cromwell, because otherwise, he might poison my breakfast—but on this occasion, I feel I have to comment.
I understand entirely that the noble Lord, Lord Curry, is worried that the emerging, very valuable nature markets should not be eclipsed totally by the levy and Natural England’s role. However, some of the amendments in this group tip the balance too far the other way and say that nature markets must be the first port of call and not considered alongside all other potential organisations that can deliver the right solution for the right site for a particular EDP.
The existing nature market products are very valuable; some of them are less so. However, there are a shedload of organisations and groups that could deliver the requirements of an EDP for Natural England, such as some of the large charities, the ENGOs, farmers, groups of farmers, other landowners and the Forestry Commission. The role of Natural England must be to consider which of those organisations, or groups of them, should be the best way forward, including private nature markets but not giving a pre-eminent place to them and them preventing Natural England choosing perhaps the most effective partner, who would be someone who is local, onsite, available, already working in providing nature outcomes and could do more work to help with that EDP.
I would be particularly unkeen that we avoid Natural England being able to do it itself. On occasion, if there is work that can be delivered to take forward an EDP next to a national nature reserve that is already managed by Natural England, why should Natural England not simply do that by extension? It would be the most sensible proposition.
Lord Cromwell (CB)
I would like to assure the Committee that I am looking forward to many convivial and toxin-free breakfasts with the noble Baroness, Lady Young, in the future—in case anybody was worried that I had, in some way, threatened her with anything else. That was far away from anything I would wish to do.
Lord Cromwell (CB)
Thank you. See you for breakfast!
On a more serious note, I ask the Minister perhaps to write to me to set out what these opportunities are, how they will be made available, and how the appropriate payment rates will be determined. I am not suggesting that she can quantify them now, but what is the process? I do not think the Bill makes that clear, unless I have missed it.
I will take the three amendments in my name as a group, as they are linked. They address the actual delivery of the conservation measures set out in environmental delivery plans, once those have been established. Clause 76(3) recognises that and says:
“Natural England may pay another person to take conservation measures”.
But the Bill lacks a clear, simple and manageable series of steps for Natural England to follow to achieve that. My Amendment 318B would turn the “may” into a “must”, meaning that third parties should be engaged. Incidentally, I do not think that those would be entirely commercial; they could be non-governmental organisations that are able to deliver.
My Amendments 320B and 325ZA set out a series of rational steps for delivering conservation works, which are: first, hold a competitive tender process; secondly, if there are no willing bidders, seek to buy the land at market value; thirdly, if that really proves impossible, proceed to compulsory purchase as a last resort. These amendments would strengthen the Bill by setting out a clear set of sequential and proportionate process stages for the all-important implementation of conservation works. This would be helpful both to Natural England and to those wishing to engage with delivering the EDP process. I hope the Government will recognise this as a helpful clarification that will support the effective implementation of the plans under Natural England supervision.
Lord Fuller (Con)
My Lords, I am greatly concerned that the Bill potentially freezes out the role for private sector providers, thus stopping the flow of investment into nature. That said, I was mildly reassured by the letter that came this morning. Nevertheless, I am anxious that the proposition is that Natural England will become a monopoly consolidator and provider of mitigation solutions—with the dead hand of the state. This Bill should define how private operators can work alongside Natural England to address the market for mitigation.
In an earlier grouping, I explained the distinction between permitting and licensing. In my view, licensing is the way to go for the EDPs, not least because it will prevent the derivatives—secondary markets that enrich speculators at the expense of delivering the outcome. We cannot afford to create a new milk quota disaster with the creation of a collateralised asset class that has everything to do with speculation and nothing to do with nature recovery. That is not an argument against private involvement; it is an argument for channelling and regulating what is a fast-developing industry.
I support Amendments 258 and 268 because they seek to put in place how we deal with private industry and how Natural England is required to engage with it. This Bill should set the terms of trade. How will those 80-year-tail liabilities be secured? What step-in rights will there be in the event of the provider going bankrupt? Will the obligations be characterised as in Section 106 or as a land charge at the Land Registry? The Section 106 route has criminal and prosecution routes in the event of non-compliance, but a land charge is an unenforceable civil matter subject to litigation. How we deal with these will be very important and needs to be in the Bill.
I spoke about these tail liabilities. I have some experience with this, as I declared earlier. I am a director of Norfolk Environmental Credits Ltd, the device through which the local councils in Norfolk manage environmental credits. We are subject to international accounting standards. We need to take into account our covenant strength. I do not believe that this has been thought through at all. We made about £5 million-worth of sales of credits to local developers, but the balance sheet value was nil because we had to discount that income over an 80-year tail. I see my noble friend Lord Mackinlay nodding. He is a tax man and understands these things.
The interplay between the P&L and the balance sheet is something that the Bill has not contemplated at all—and it must. Unless we include sensible benchmarking accounting standards to value the upfront contributions against those tail liabilities, we will never give confidence and clarity so that schemes can be consistently compared. None of this essential detail is contemplated by the Bill but it should be.
This is before we get to private industry having a role in the pricing, and the heroic assumption that Natural England, as is anticipated, will be able to deliver mitigation more efficiently than a competitive, healthy private sector. Given the monopolistic nature of the state-owned mechanism for charging, and the speed at which the large bureaucratic organisations operate, this completely unqualified assumption seems tenuous. There are obvious conflicts of interest and susceptibility to legal challenges through those conflicts. How is Natural England going to kitemark private proposals? What protections would private operators have against predatory pricing or the loading of legal contractor inspection costs on to innovative solutions, with the only opportunity for these private operators to appeal being against the organisation that is trying to eat their lunch?
We need the innovation of private providers so that we avoid muddled thinking. I am delighted to see the noble Lord, Lord Hunt of Kings Heath, in his place. He characterises as eco-zealots those who order the use of bat bridges, the eye-wateringly expensive bat tunnels—each of which was a colossal waste of money —or the sloppiness of the designation of land at Ebbsfleet as unfavourable when it was not unfavourable.
We need a streamlined process where developers can work with landowners to propose and have certified good schemes delivered in local markets at sensible prices—especially now that we contemplate that hundreds of these EDPs may be produced. While Natural England is focused on its own proposals, we need to give comfort to private operators that their applications will be dealt with promptly rather than them submitting the ideas and not having them taken seriously by Natural England. That is no way to proceed. We need to establish contract certainty, the legal basis and the enforceability of these projects, with the assurance that the mitigations will be delivered over the liability period.
Failure looks like packaging and collateralisation of these schemes into another subprime crisis. We must guard against that. The private sector has a role and can and should work in tandem with Natural England. But all this counts for nothing unless the terms of trade are set.
I have other things to say but, given the time, I will stop there. The Bill needs to state explicitly that the private sector has a role to play. But Natural England should have a statutory duty to actively assist competition in this space in a prompt and timely manner, even if it is at the expense of its own proposals.
Lord Inglewood (CB)
My Lords, as I listened to this debate, I thought that everybody was talking about it from the perspective of the person who does the work. The prime focus of what we are discussing should be the best outcome for nature. The most choice available to help nature is the route we should go down. Therefore, we should not exclude any possibility of all kinds of commercial arrangements that may surround this, some of which, particularly given the points drawn to our attention by the noble Lord, Lord Fuller, we may not yet even have thought of. We should keep every option open to ensure that the outcome for nature is ultimately the prime consideration.
Lord Fuller (Con)
I thank the noble Lord. He makes a point that I missed when I turned a page in my notes. Essentially, we are creating financial instruments with muddy wellingtons attached. We need to think about that balance as we contemplate how the Bill will work in practice, with those 80-year requirements to keep and maintain these projects contemplated by the EDP. It needs a change of thought.
Certainly, international accounting standards will be at the front of our mind. This is the sort of question that actuaries at life insurance companies are employed to handle. They know that they have a liability and what sum of money is needed up front to deal with it. That is not contemplated at all in Clause 59. It needs to be. That is the point I am trying to make. The state cannot do it itself—it needs a flow of private money coming into this space to benefit nature, but one that has its feet on the ground and where the numbers add up.
Lord Roborough (Con)
My Lords, my Amendment 318ZA seeks to ensure that farmers and farmer cluster groups are permitted by Natural England to apply to the nature restoration fund and actively participate in the delivery of conservation measures required under EDPs. This is a straightforward but essential point. Farmers are not just stewards of the countryside. In many cases, they are the very people who are best placed to implement and sustain long-term environmental outcomes.
If we are serious about delivering the ambitions of the Bill, we must make full use of the capacity, expertise and local knowledge of the farming community. Allowing them access to the nature restoration fund is not only fair but practical, efficient and better for nature and, to the point made by the noble Lord, Lord Inglewood, expands choice.
One of the many concerns that I and others have expressed about Part 3 of the Bill is that it disenfranchises the private sector, which has been developing BNGs to aid developers with the mitigation hierarchy. I appreciate that the Minister has suggested, and probably will again, that EDPs are intended to operate alongside the existing structures and to engage with the private landowner and farming community. But it is far from clear how that will work and it does not appear to be in the Bill. However, this amendment encourages Natural England to define the EDP that it is seeking to deliver and allows the private sector to offer solutions on commercial terms. The amendment has very considerable merit, as it guarantees the involvement of the private sector and takes pressure off the underresourced NE to design the EDP and deliver it. At a time when budgetary pressure and government decisions are seeing funding to the rural economy reduced in real terms, I hope the Minister will welcome this or any similar amendment.
Amendments 258, 268 and 353, in the name of the noble Lord, Lord Curry of Kirkharle, aim to ensure that private market solutions can play a meaningful role in the implementation of Part 3 of the Bill, including through on-site mitigation by developers and investment in nature recovery through market mechanisms. We support the sentiment behind these amendments. They are thoughtful, interesting, pragmatic and right. The noble Lord rightly identifies that if we are to achieve our environmental targets, we must unlock private capital alongside public investment. That includes enabling developers to deliver effective biodiversity net gain directly where appropriate and giving confidence to investors that their participation in ecosystem markets will be valued and secure.
Amendments 318B, 320B and 325ZA, in the name of the noble Lord, Lord Cromwell, would strengthen the obligation on Natural England to use private markets in delivering EDPs and introduce a clearer hierarchy for Natural England’s direct involvement. These amendments point to a real concern—notably the risk of crowding out private sector delivery by overly centralised or bureaucratic processes. They would also introduce a limitation on Natural England’s ability to compulsorily acquire land, requiring Secretary of State authorisation and evidence that land cannot be bought at market value. This too is an important addition to amendments we have already put down and debated trying to restrict Natural England’s power to compulsory purchase land at will.
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.
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.
“(2A) Where an EDP includes conservation measures of the type mentioned in section 55(4) (network conservation measures), it must state how, in the opinion of Natural England, the measures comply with the requirement in section 55(4A) (network measure to make a greater contribution to improvement of conservation status of the feature than onsite measure).”Member's explanatory statement
This amendment would require that, where an EDP includes network conservation measures, it must state how Natural England considers that these meet the requirement in section 55(4A) (inserted by my amendment to clause 55 at page 92 line 12) that they are more effective than onsite measures.
Member's explanatory statement
This amendment is consequential on my amendment leaving out clause 58 and my amendment inserting a new clause before clause 88.
Member's explanatory statement
This amendment is consequential on my amendment to clause 76 inserting a new subsection (4).
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I alert the Committee to the fact that, if this amendment is agreed to, I shall not be able to call Amendment 263 by reason of pre-emption.
“(A1) When Natural England decides to prepare an EDP, it must— (a) notify the Secretary of State of that decision, and (b) publish the notification given to the Secretary of State.”Member's explanatory statement
See the explanatory statement for my amendment leaving out clause 58.
Member's explanatory statement
This amendment would make changes to strengthen the overall improvement test, which the Secretary of State must consider before making an EDP.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I alert the House that if this amendment is agreed to, I cannot call Amendments 287 or 287A by reason of pre-emption.
Lord Roborough
“(8) Where the Secretary of State chooses not to make an EDP, the Secretary of State must also seek to return any land obtained under a compulsory purchase order for the purposes of the EDP to the original owner.”Member's explanatory statement
This amendment requires the Secretary of State to seek to return any land obtained under a compulsory purchase order where the Secretary of State has decided not to make the connected Environmental Delivery Plan.
Lord Roborough (Con)
My Lords, I rise to move my Amendment 292 and speak to Amendments 298 and 324 my name. I will leave my comments on other amendments in the group to the time I have available at the end. However, I see merit in those amendments and hope that the noble Baroness, the Minister, listens to those contributions. I apologise if I inadvertently misspoke when I interrupted the Minister at the end of the previous group.
As I have mentioned in previous debates, we are strongly opposed to Natural England being awarded CPO powers in connection with environmental delivery plans. We question the necessity of the nature restoration levy used to fund EDPs. Just 1% of housing applications consulted on by Natural England are objected to on the basis of environmental concerns, and only 10% of long-term infrastructure projects are challenged by environmental concerns. To suggest that environmental regulations are the reason that development is not occurring on the Government’s desired scale is simply not correct. For Natural England to then be given CPO powers for EDPs is surely rubbing salt into the wound.
The Bill threatens to create a Government monopoly on conservation project delivery and delegated responsibility to Natural England. With that in mind, these amendments attempt to rein in the powers of Natural England and outline their scope so that, while still extensive, they do not step into outright intrusive. Amendment 292 ensures that land that is subject to CPO is returned to the original owner if the intended EDP does not go ahead. My noble friend Lord Sandhurst has already discussed the Crichel Down rules, and this amendment simply makes that part of this legislation. I believe that it is a valuable safeguard to ensure that land is CPO’d only when an EDP is certain.
Amendment 298 is in a similar vein, ensuring that land is also returned if a CPO is revoked—again, a valuable sanction against underperformance by Natural England. Amendment 324 seems a simple and obvious amendment, and a critical protection for every home owner or tenant in this country. Surely Natural England’s CPO powers should be limited such that it cannot CPO a garden, an allotment or indeed a home for an EDP. It may seem unlikely for that even to be a possibility. For that reason, some may think that this is not a serious amendment, but it is. What if someone’s garden or allotment is located in an area subject to an EDP and contains a feature, species or habitat that NE finds attractive? Under the Bill, NE has the power to force entry to assess it and to CPO it if the homeowner does not want to play ball. I urge the Government to accept this simple amendment to allow us all to remain secure in our enjoyment of our property.
I hope that the Minister, will listen carefully to the amendments in this group and be sufficiently stimulated to help to prevent Natural England’s becoming an authoritarian empire.
The Earl of Caithness (Con)
My Lords, I have put my name to the amendments tabled by my noble friend Lord Roborough, and I thoroughly support them. I do not wish to add anything to what he has said. I have also put my name to Amendment 323 in this group. I ask your Lordships to look at paragraph 816 of the Explanatory Notes to the Bill, which says:
“Subsection (2) sets out that the power can only be exercised if the land is required for purposes connected with a conservation measure”—
and here are the important words—
“set out in an EDP”.
In other words, Natural England cannot go around compulsorily purchasing land for just any old conservation measure; it has to be one set out in an EDP. My Lords, I presume that this is just a typing error between the green pages of the Bill and the white pages of the Explanatory Notes, and that the Government will therefore be able to accept the amendment.
Baroness Coffey (Con)
My Lords, I will speak to the amendment I have tabled. I removed a group from the debate, noble Lords will be pleased to know, and thought this was the appropriate place to put it. I start by supporting the amendment of my noble friend Lord Roborough. The human rights memorandum accompanying the Bill is frankly on the edge of trying to suggest that this could well be allowable on the basis of it being for the public benefit. Clearly, if the land is no longer needed and has not been approved for use by the Secretary of State, it must go back to the original owner without question. If not, it would be a further infraction of land removed. I appreciate that there may have been some compensation in the interim; perhaps the details of that need to be sorted out.
My amendment goes all the way to page 119 in this Bill and then back to Clauses 83 and 84. It suggests that powers to acquire land compulsorily do not apply in relation to Crown land, and then subsection (10) defines Crown land in that regard. Subsection (10) says that Crown land means land in which there is a Crown interest or a Duchy interest, but Crown land, as I may have explained to the Committee, is also land belonging to any government department. I appreciate that I do not know the full conventions for discussing matters regarding the royal family, but I give the example of Dartmoor, which has been a combination of Duchy of Cornwall land, part of Dartmoor National Park and privately held. It is also a significant landscape, probably of the type that could well have EDP proposals put there, ideally fixing the SSSIs that are not quite so good at the moment.
My main focus is government land. Perhaps I am being too strong, but it seems somewhat heinous that the Government can start going after all other private land. Bearing in mind how much land this Government own—I think the MoD is the fourth-largest landowner in the country—why does this not apply? Quite often, with bits of government land around the country, Homes England try to get some of it for housing, and so on. But it is an exceptionally laborious process while trying to achieve a government outcome. Departments such as the MoD often want the full market value, as if it were a commercial enterprise when selling to Homes England.
So, I am concerned. I would not mind if we excluded the bit that was the Duchy of Cornwall or the Duchy of Lancaster, but we should not be excluding government land from being potentially available to undertake the exercise that we want it to as a Government and Parliament intend. I therefore encourage the Government to think again and perhaps to rescope Clause 91(10) to have only the very specific narrow elements of that definition, as set out in Part 13, Section 293 of the Town and Country Planning Act 1990, and to exclude only those held by the relevant Crown and Duchy interests that are not government land.
Lord Cromwell (CB)
My Lords, I support Amendment 292, which requires that, where land has been acquired under compulsory purchase but is not then used for the purpose for which it was acquired, the Secretary of State should seek to return it to the landowner. Surely that is natural justice. However, it leaves open what happens to any compulsory purchase funds that have been paid to the landowner. To my mind, the funds should be returned if they wish to take back the land.
I draw the Committee’s attention to evidence from HS2, including coverage on the BBC—is there a debate we can have without reference to HS2? Land was compulsorily purchased, but when it was decided that the land was not needed, it was offered back to the farmer in question to buy at a far higher price, or the so-called market value, which is a fine example of profiteering on the back of compulsory purchase. I also remind the Committee of the concerns I evidenced on Monday about the bullying behaviour of agents acting for authorities with compulsory purchase powers. Despite what it says about it being a last resort in theory, when the agents are motivated to acquire the land as quickly and cheaply as possible, different tactics often apply.
Baroness Taylor of Stevenage (Lab)
My Lords, this group relates to the powers in Part 3 for Natural England to make a compulsory purchase for purposes connected with the taking of conservation measures. The Government have taken a cautious approach in respect of compulsory purchase powers, but it is clear that this needs to be available to ensure that there is sufficient certainty that, where necessary and appropriate, compulsory purchase can be used to ensure that conservation measures are delivered. However, the Government recognise the need for such powers to be tightly constrained, and I am confident that, when considered alongside existing safeguards, the proposed amendments are not necessary.
I turn first to the amendments tabled by the noble Lords, Lord Roborough and Lord Blencathra, which seek to require Natural England to return any land obtained under a compulsory purchase order in two different scenarios. The first is when Natural England uses these powers to purchase a piece of land and the Secretary of State later decides not to make the EDP in question. I can assure the noble Lords that this will never happen, as Natural England cannot make a compulsory purchase before the EDP has been made.
The second scenario is when an EDP is revoked. Where an EDP is revoked, any land secured through compulsory purchase may still be required to address the impact of development covered by the EDP, or to support the delivery of any remedial measures being taken forward following revocation. Requiring land to be returned automatically would risk removing a crucial way of delivering remedial measures and potentially damaging the relevant environmental feature.
Where land has been compulsorily purchased and is not needed, and it would genuinely be surplus, the Crichel Down rules would apply. The land would be offered back to the former owner, their successor or sitting tenants at market value, provided that the land has not materially changed and none of the exceptions under the rules applied. These rules are well-established, as we discussed in a debate the other day, so I hope the noble Lord is content to withdraw his amendment.
Moving to Amendment 323, tabled by the noble Lord, Lord Cameron, and the noble Earl, Lord Caithness, I assure the noble Lords that the subject of their amendment is already addressed in the Bill. CPO powers may be used only in connection with the taking of conservation measures, as defined in the legislation. Amendment 324 would restrict Natural England’s ability to use CPO powers to purchase land that is part of a private dwelling. I would first like to assure noble Lords that this type of land is incredibly unlikely to meet the high bar for compulsory purchase or to be approved by the Secretary of State. The use, or future use, of land will be taken into account by the Secretary of State when approving the CPO. This important safeguard ensures that the use of these powers comes with appropriate oversight, and noble Lords will be aware of existing protections around private dwellings granted by the Human Rights Act 1998. I think the noble Lord, Lord Roborough, mentioned that himself.
Finally, Amendment 352 would extend the compulsory purchase powers to Crown land. The CPO powers in the Bill are there to provide assurance that land can be acquired where necessary to ensure that an EDP can deliver the necessary conservation measures. Extending these powers to cover Crown land is unnecessary. To put it simply, if Natural England were to require Crown land for a conservation measure, that would be resolved between Natural England and the relevant authority. I hope that, with those explanations, the noble Lord will be content to withdraw his amendment.
Lord Roborough (Con)
My Lords, this short debate and previous debates covering other amendments relating to CPOs have been a clear demonstration of just how emotive compulsory purchase is. Handing these powers to Natural England almost unfettered is surely a step too far. I am grateful to the Minister for trying to reassure the Committee, but the comments about going back at market value are exactly the issue that the noble Lord, Lord Cromwell, highlighted: if that market value has changed dramatically between when the CPO happened and when it was decided to return it, that would seem rather unfair. A requirement to buy the land back at the same price would be fine.
Baroness Grender
“(2A) An EDP may not be amended if the amendment would reduce the amount, extent or impact of conservation measures that are to be taken to protect the identified environmental features.”Member’s explanatory statement
This amendment would mean that the Secretary of State could not amend an environmental delivery plan so as to reduce the measures to be taken to mitigate the negative environmental impact of a development.
Baroness Grender (LD)
My Lords, Amendment 294 would prohibit any changes to an environmental delivery plan that would reduce the amount, extent or impact of conservation measures designed to protect identified environmental features. In effect, the Secretary of State would be unable to alter an EDP if such an amendment would weaken established environmental protections.
The aim here is to safeguard against the watering down of environmental commitments once they have been set out in an EDP. Years and years of planning history have too often shown that protections established at the outset erode over time, whether under pressure in the name of economic growth, or because of shifts in ministerial priorities or as new developments are proposed nearby. For example, more than a third of England’s rivers remain classified as in poor ecological health, frequently because enforcement and standards around protections weaken as circumstances change. It is therefore vital that commitments to mitigate the negative impacts of development are not easily reversed or diminished.
This amendment is rooted in the environmental non-regression principle. This asserts that environmental law and standards should not go backwards but instead serve as a stable and reliable foundation for ongoing improvement. Once conservation measures are agreed and an EDP is made, the protections and enhancements should be seen as a baseline from which further progress can be made, not as a temporary line which can be negotiated away. Local communities, environment groups and stakeholders need assurance that commitments to, for instance, river restoration or species recovery will not be diluted at a later date. The amendment aligns with the Government’s own Environmental Principles Policy Statement, under which all departments are obliged to prevent, reduce and rectify environmental harm, not simply react to it after the fact.
This amendment enhances long-term investment in environmental improvement. Developers and landowners will know that measures agreed at the outset must be maintained, promoting higher standards of stewardship and accountability. Policymakers will be able to set conservation targets with assurance that they are durable, not fleeting or subject to administrative whim.
This amendment is the chance to break the never-ending cycle of much-promised and not delivered. I note that it is in the same group as several other amendments, which I suspect will have a very fair wind behind them, and I just hope it slips in along with them. It would be excellent if this joined them or if there was any possibility of that. I hope the Minister will consider the merits of this amendment, I look forward to hearing her response and I beg to move.
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.
“(5A) A report under subsection (1)(a) (midpoint report) must also include an assessment of whether the EDP is likely to pass the overall improvement test.(5B) A report under subsection (1)(b) (final report) must also include—(a) an assessment of whether the EDP has passed the overall improvement test, and(b) if the assessment is that the EDP has not passed the test, the extent to which the conservation measures have failed to outweigh the negative effect of the EDP development as mentioned in section 60(4).(5C) A report under subsection (2) (revocation report) must also include—(a) an assessment of whether the EDP would be likely to pass the overall improvement test if it were not being revoked, but reading section 60 as if—(i) the reference in subsection (4) to the conservation measures were a reference to the conservation measures that have been or will be taken despite the EDP’s revocation (but not including any measures taken by way of remedial action under section (Remedial action by Secretary of State where EDP ends or is revoked)(4));(ii) the reference in subsection (5) to the maximum amount of development to which the EDP may apply were a reference to all of the development in respect of which a developer has paid or will pay the nature restoration levy despite the EDP’s revocation;(b) if the assessment is that the EDP would be unlikely to pass the test, the extent to which those conservation measures are likely to fail to outweigh the negative effect of that development.”Member's explanatory statement
This amendment would require Natural England to include more detail in its reports about the effect of any conservation measures that have been implemented.
“(2A) Where Natural England requests, or the Secretary of State is minded to make, an amendment to an EDP that—(a) increases the maximum amount of development to which the EDP may apply, as specified under section 54(5),(b) changes the development area to include a new area to which the EDP does not currently apply, or(c) adds new conservation measures that are of a kind not currently included in the EDP,the Secretary of State must direct Natural England to consult on the EDP as proposed to be amended.”Member's explanatory statement
This amendment would require Natural England to consult when an amendment is proposed to an EDP which 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.
Member's explanatory statement
This amendment is consequential on my amendment to clause 63, inserting a new subsection (2A).
“(5) The Secretary of State may make an amendment to an EDP only if the Secretary of State considers that the EDP as amended passes the overall improvement test.”Member's explanatory statement
This would be a drafting change to align the drafting of clause 63(5) with that in clause 60(3).
Member's explanatory statement
This amendment would correct an incorrect cross-reference in clause 63(10).
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
The Deputy Chairman of Committees (Viscount Colville of Culross) (CB)
I cannot call Amendment 297 by reason of pre-emption.
“Remedial action by Secretary of State where EDP ends or is revoked(1) This section applies where a report under section 62(1)(b) or (2) (report at end or on revocation of EDP) contains an assessment that the EDP has not passed, or would be unlikely to pass, the overall improvement test (see section 62(5B) and (5C)).(2) The Secretary of State must take such action (“remedial action”) as the Secretary of State considers proportionate for the purpose of seeking to materially outweigh the negative effect on the conservation status of the identified environmental feature that is (or is likely to be) caused by the environmental impact (as identified in the EDP in accordance with section 55(1)(b)) of any development in respect of which a developer has paid or will pay the nature restoration levy.(3) In deciding whether remedial action is proportionate, the Secretary of State must take into account—(a) the extent of the negative effect on the conservation status of the identified environmental feature,(b) the extent to which the remedial action would remedy that negative effect, and(c) the cost of the remedial action.(4) Remedial action may include—(a) taking (or continuing to take) any conservation measures included in the EDP, or directing another public authority to take (or continue to take) such measures;(b) taking, or directing another public authority to take, any other measures to improve the conservation status of the identified environmental feature.(5) The Secretary of State must, before the end of the period of six months beginning with the date on which the report mentioned in subsection (1) is published, publish a statement setting out—(a) the remedial action that the Secretary of State intends to take, and(b) the effect that the remedial action is expected to have on the identified environmental feature.(6) The Secretary of State must, before the end of the period of two years beginning with the date on which the statement mentioned in subsection (5) is published, publish a report setting out—(a) the extent to which the remedial action has remedied the negative effect mentioned in subsection (2), and(b) whether the remedial action has had its expected effect, as set out in the statement under subsection (5)(b).(7) If any measures taken by way of remedial action have not been fully implemented by the time the report mentioned in subsection (6) is published—(a) that report must set out when the measures are expected to be fully implemented, and(b) the Secretary of State must publish a further report, containing the information required under subsection (6)(a) and (b), before the end of the period of six months beginning with the day on which the measures are fully implemented.”Member's explanatory statement
This amendment would require the Secretary of State to take remedial action in any case where an EDP ends (not only in cases of revocation) and its conservation measures have been assessed not to have been effective. It would also require the Secretary of State to publish a statement of the remedial action that will be taken and to report on it when it has been taken.
Lord Roborough
“Nature restoration levy: payment, liability and amount(1) A developer may make a request in writing to Natural England to pay the nature restoration levy in relation to a development to which an EDP applies and if Natural England accept the request, the developer is committed to pay the nature restoration levy.(2) The Secretary of State may make regulations about the nature restoration levy (“nature restoration levy regulations”).(3) Nature restoration levy regulations may—(a) seek to ensure that costs incurred in maintaining or improving the conservation status of environmental features can be funded (wholly or partly) by developers in a way that does not make development economically unviable,(b) make provision about liability to pay the nature restoration levy in relation to a development, including who is liable to pay the levy, and when liability to pay arises.(4) When considering the rates or other criteria to be set out in a charging schedule, Natural England must have regard to, in the manner specified by nature restoration levy regulations, the actual and expected costs of the conservation measures relating to the environmental impact of development on the environmental feature to which the charging schedule relates.”
Lord Roborough (Con)
My Lords, I will also speak to Amendments 306A and 308 in my name. These amendments seek to introduce clarity, proportionality and fairness into the operation of this new levy.
Amendment 299 seeks to specify the principles governing payment, liability and the calculation of the amount payable under the nature restoration levy. I appreciate that the noble Baroness the Minister wrote a very helpful letter today laying out some of the process that developers will be subject to here. It is essential that developers have certainty and predictability. Clarity on who pays and how much they pay is fundamental to ensuring a functional and trusted levy regime that does not deter responsible development. There is considerable concern over the cost to developers of the EDP, particularly given that it appears it will be taken outside the Section 106 agreement and therefore threaten the financial viability of developments. My noble friend Lord Lansley appears to have a similar intent with Amendment 306, and I will listen to his comments with interest.
Amendment 306A deals with proportionality. It would recognise that, in some cases, even after applying the mitigation hierarchy in full, there may still be residual environmental impacts. This amendment would allow for a proportionate contribution, not a full contribution, to be levied in such cases. It would ensure that developers who are genuinely taking steps to minimise harm are not disproportionately penalised, while still upholding our responsibility to invest in nature restoration where impacts cannot be wholly addressed on site. I believe that this is an important environmental protection that ensures that mitigation on site remains incentivised, as it would result in a reduced contribution to the nature restoration fund. This would also help to ensure that private sector services remain important for developers. My noble friend Lord Grayling’s Amendment 305 again appears to pursue a similar aim, and I am sure that we will speak prior to Report if we do not receive satisfactory reassurance today.
Amendment 308 turns to implementation. It would ensure that the regulations governing the nature restoration levy include provisions for how it is to be collected and enforced. Crucially, it would require that the funds received are spent by Natural England on conservation measures directly linked to the environmental feature that justified the levy in the first place. This would not only increase transparency but maintain public trust in the system. Further, the amendment includes a right of appeal on a question of fact related to the calculation of the levy. This is a basic principle of fairness and accountability.
I believe that these are sensible amendments. They do not seek to undermine the nature restoration funds, but rather to ensure its integrity, effectiveness and fairness, all of which are principles that should be central to any regulatory mechanism. Put together, the amendments in my name would form a coherent and practical approach to ensuring that the nature restoration levy supports both environmental enhancement and sustainable development. I look forward to the remarks from noble Lords on all Benches. I beg to move.
Lord Lansley (Con)
My Lords, I will speak to Amendment 306, which is in this group in my name, but I want to make a number of other points. First, I want to note that we have just agreed Clause 65. I remember that my noble friend Lord Caithness did ask a question in a previous group at an earlier time about the opportunity to challenge an environmental delivery plan, to which the answer was that there was a provision for that somewhere. This is indeed true; it is in Clause 65, which we have just agreed. I will just point out—we may need to return to it and check that we are clear—it is a challenge by way of judicial review; there is not the opportunity to challenge an environmental delivery plan in circumstances where one believes that the facts and the evidence are wrong. The merits of the decisions may not be challenged; only the procedural aspects may be challenged by way of judicial review.
I mention that because, in this group, my noble friend in his subsection (1)(c) of the new clause in Amendment 308 refers to a right of appeal in relation to the establishment of the levy. This is an appeal on a question of fact, so it is a different kind of an appeal for a different purpose. I think that it is rather a good thing, but the question is: to whom should it go? Clause 70 sets out that there may be an appeal, but, unfortunately, it does not say to whom, or how or whatever. Do the Government happen to know to whom the appeal will be made? When I look at Clause 69 and the provisions setting out at some length how the charging schedules may be established in regulations, it seems to me awfully similar to the legislation that provides for the community infrastructure levy, for those who recognise these things. An appeal against the community infrastructure levy would be to the District Valuer Services, so it might be sensible for Ministers, if they can do nothing else, to at least tell us if it is the intention that the District Valuer Services would undertake the work on charging schedules and levy amounts for the environmental delivery plans.
The point of my Amendment 306 is to acknowledge that we have this lengthy set of clauses that tell us that the EDP must be calculated in relation to its costs and that that must be turned into a charging schedule. Clearly, we cannot assume that the development will be the responsibility of any one person; it may be the responsibility of many persons. The charging schedule is actually very like a community infrastructure levy charged against the development, and indeed it might be imposed, and the charging schedules could, as Clause 69 says, be determined by reference to the nature and/or the amount of development. It could be very like a community infrastructure levy for commercial purposes; it could be so many pounds per square foot and so on. If it is very like it, it would be quite useful to know that.
The Minister might say there is not really a requirement on local authorities to consult about a community infrastructure levy, but actually many do. I hope that the Minister will be able to say that, when an environmental delivery plan is proposed, it will be the intention of Natural England to talk to the people who are potentially liable to pay the levy. Otherwise, I am not quite sure how we arrive at the point, which the legislation appears to anticipate, that the developers would volunteer and request to pay the levy. They need to know about it and be consulted. They should also be consulted about the charging schedule, not with a view to agreeing it, but certainly to be able to understand the nature of the additional costs.
This is linked to the second point in my amendment, which is about the regulations setting out when and how a viability assessment might be undertaken. Often, for developers, the viability assessment that matters is the one that starts out the development—at the point at which one is buying the land, at the point at which one is understanding the costs, at the point at which one puts all these potential costs together and says, “How much is this option worth? How much is this land worth?” The later viability assessments are potentially very burdensome and may torpedo a development, but that is not what we want to do. We want to arrive at an understanding at the earliest possible stage of what all the costs look like.
The regulations should provide for Natural England to talk to the potential developers who might pay the levy and make provision if necessary for a viability assessment to be undertaken at a relatively early point. To that extent, it is a probing amendment, because I want to be sure that these things will happen. They can, under the legislation, be included in the guidance that is to be provided. The question is: will they? If Ministers cannot say that they will do so, perhaps they ought to reconsider or at least look at whether the regulations should provide for that.
In Clause 69, when the amount of the levy has been determined, we suddenly encounter the proposal that the environmental delivery plan may be mandatory. I have not found the place where we understand in what circumstances and for what reasons the levy becomes mandatory as opposed to voluntary. I would be grateful if the Minister, either at this stage or at a later stage, would explain that to us.
Earl Russell (LD)
My Lords, I speak to my Amendment 304 in this group on the payment of the NRF levy and appeals. This amendment seeks to ensure that
“the cost of works for nature restoration and enhancement are covered by the developer, in accordance with the Polluter Pays Principle. The setting of the Levy schedule should act as a deterrent to developments that would have an outsized impact on the natural environment, redirecting them to locations with lower environmental impacts”.
This is an amendment to Clause 67 aiming to define the fundamental purpose of the nature restoration levy and to embed a core principle of environmental justice into the legislation. In this way, the amendment is quite different from the others in this group, and it is important. It proposes that the Bill explicitly states that the Secretary of State, in making regulations for the levy,
“must ensure that the overall purpose of the nature restoration levy is to ensure that costs incurred in maintaining and improving the conservation status of environmental features are funded by the developer”.
It further clarifies:
“The setting of the Levy schedule should act as a deterrent to developments that would have an outsized impact”,
thereby redirecting them. This is important to make sure that we are not just permitting this kind of damage.
I thank the Ministers for their letter earlier today. I was in Committee this morning, so I have not managed to go through it fully, but there are still concerns about the nature restoration fund and developers paying to offset and the potential impacts that exist in the Bill. My amendment seeks to change this by requiring the Secretary of State to ensure that the overall purpose of the levy regulations is that developments remain economically viable. The approach in the Bill has been identified by the Office for Environmental Protection as risking leaving the process open to economic compromise. The Wildlife Trusts, similarly, has articulated that it is essential that it is not the case and that achieving overall environmental improvement should be an absolute priority within the new system. It argues that that would
“correct the oddity of clauses which are meant to be environmental in character having an economic viability overall purpose”.
The amendment directly addresses this flaw by placing nature restoration, funded by the developer, as a primary overarching purpose of the levy. In so doing, it does three things. As I said, it upholds the “polluter pays” principle. It prioritises nature recovery; it ensures that the nature restoration levy is a tool for delivering genuine ecological improvements rather than a mechanism designed primarily to facilitate development viability at nature’s expense, and it directs the levy to act as a deterrent. A robust levy set appropriately will incentivise developers to choose sites with lower environmental impacts, thereby proactively safeguarding our natural environment and preventing irreversible harm.
This is a sensible amendment. I welcome the other amendments in this group, which I read as probing amendments, so I am interested to see what the Minister says in response to those. This is an important matter. I look forward to having further discussions with the Minister prior to Report and to her response.
Baroness Coffey (Con)
My Lords, my noble friends Lord Grayling and Lord Randall of Uxbridge cannot be here, but their Amendment 305, to which my noble friend on the Front Bench has also added his name, is really important in trying to make sure—going back to the environmental principles and government policy—that developers should be rewarded for doing the right thing up front, instead of just being prepared to sign a cheque. It is certainly not a blank cheque, but it could be a very big cheque. That should be offset, recognising the work done by developers as they develop their housing and other projects.
I am sure that my noble friend on the Front Bench will go into more detail, but in essence, we risk entering a regime where mandatory levies are applied, and it is not even necessarily guaranteed that planning consent will be given. Meanwhile, instead of outsourcing, in effect, a lot of the work that would happen as a consequence of an EDP, we want developers to make sure that they design in the integration principle, which the Government have in their policies. It is a transfer of that into thinking how we build right first time, instead of constantly thinking about how to retrofit or do other elements, which, frankly, may not be as well done considering the original design.
Baroness Taylor of Stevenage (Lab)
My Lords, this group of amendments relates to the payment and collection of the nature restoration levy. First, Amendments 299 and 308, tabled by the noble Lords, Lord Roborough and Lord Blencathra, seek to reframe the powers to make levy regulations. In designing these powers, the Government have been careful to ensure they cover everything required to support the levy. These powers are drawn from existing powers in the Planning Act 2008 to make community infrastructure levy regulations, to which the noble Lords, Lord Roborough and Lord Lansley, referred. These provide for all relevant circumstances. As such, we believe the powers as drafted are appropriate and sufficient to cover the matters the noble Lords set out in their amendments. In addition, Clause 69(1) already requires Natural England to base the schedule on the expected costs of conservation measures when considering how much to charge developers.
On Amendment 304, tabled by the noble Earl, Lord Russell, while the only test the EDP needs to pass is the overall improvement test, ensuring the viability of development is a crucial consideration for any EDP. Put simply, if using an EDP would make development unviable, then developers will simply choose not to use the EDP.
Amendment 305, tabled by the noble Lord, Lord Grayling, and spoken to by the noble Baroness, Lady Coffey, seeks to add a duty on Natural England to offer discounts to developers paying into an EDP if they incorporate measures to enhance biodiversity on their sites. This approach risks conflating the existing BNG requirements with the discharge of environmental obligations through an EDP. However, we will look to ensure a smooth, user-friendly experience for developers, including the SME builders that we have been talking about so much during the debates.
Lord Lansley (Con)
I am grateful to the Minister. I note that, in Clause 69, there is a provision that the regulations may require or permit Natural England to integrate the process—that is the levy process—
“to the extent and in the manner specified by the regulations, with processes undertaken for other statutory purposes”.
Are we in that territory? Are we in the territory where a community infrastructure levy, environmental delivery plan levy or the nature restoration levy could be part of the same process?
Baroness Taylor of Stevenage (Lab)
I am not sure they would be the same process, but I think that refers to the fact that some of the same processes—for example, the appeal process—might be similar to the process being used for the levy for the EDP. That is what that reference is to, but if it is any different to that or more complex, because the way that the noble Lord described it would be a much more complex integration of both processes, I will confirm to him.
The noble Lord also referred to the viability assessment and the way that developers do this. In my quite lengthy experience of planning, I have found that developers are pretty masterful in developing their viability assessments. In the early days of this, they will want to look at how EDPs and the charging regimes around them are being framed. Most developers are quite competent at working up a viability assessment to take into account some of the new things that come along. The guidance point is an important one. We will always aim to assist those who are involved in this process with guidance, so I would anticipate that there will be guidance forthcoming. With this explanation, I hope that noble Lords will be content not to press their amendments.
Finally, Amendment 306A, tabled by the noble Lord, Lord Roborough, seeks to allow the nature restoration levy regulations to impose the liability to pay into the nature restoration fund where the impact of the development cannot be fully dealt with through the mitigation hierarchy. The levy regulations will already allow for differential rates to be charged based on the varying impact of development. It follows that development that is having a greater impact on the environmental feature will be charged a higher levy rate. Where a developer chooses to use the existing system, they would need to address the impact of development through that approach. However, should a developer subsequently decide that they wish to use an EDP, they could still make a commitment to pay the levy prior to the planning application being determined. As such, the legislation can already accommodate the circumstances envisaged by the amendment, so I hope that the noble Lord will not press his amendment.
Lord Lansley (Con)
Before my noble friend replies, can I just ask the Minister if—perhaps not now, but at some point before Report—she could just go back to the question on Clause 66 regarding the circumstances in which an EDP makes the levy mandatory and explain what kind of circumstances are anticipated?
Baroness Taylor of Stevenage (Lab)
I apologise to the noble Lord. I did not answer his question, which was quite clear. I think the issue of mandatory EDPs was put in as a precaution, but he is right—it would be useful to have some examples of where that might be necessary. We will come back to that between Committee and Report, so that we are all clear on the kinds of circumstances where a mandatory EDP may be put in place. It is important that we all understand that.
Lord Roborough (Con)
My Lords, I thank all noble Lords for their thoughtful contributions to this short debate, and I thank the Minister for her response. I am particularly grateful to my noble friend Lord Lansley for his comments clarifying my question about financial viability. I remain not completely clear. The letter this morning was helpful, but it would be helpful if, when the Minister responds to the questions raised in this debate, she could say whether the actual cost of contributing to the NRL will be available prior to Section 106 being available. The Minister has much greater experience than I do on how developers act in these ways, but it would be reassuring to know that there is no excuse for reopening affordable housing contributions in Section 106 based on unexpected costs of the NRL.
I thought the Minister’s response about the proportionate nature of the application of the nature restoration levy very helpful, and I will go away and read her comments. I beg leave to withdraw my amendment.
“(c) monitoring EDPs.”Member's explanatory statement
This amendment would move the requirement on Natural England to monitor EDPs (currently in clause 57(7)) into clause 76.
The Earl of Caithness
Member's explanatory statement
This amendment seeks to ensure that those paid by Natural England to deliver EDPs have the appropriate expertise for the role.
The Earl of Caithness (Con)
My Lords, I beg to move Amendment 319 and will speak to Amendment 320. I would like a little bit of clarification on Clause 76(3), which reads:
“Natural England may pay another person to take conservation measures”.
Surely that ought to be “an appropriate person, with the right qualifications, to take conservation measures”? I would be grateful if the Minister could expand a little on what the Government’s intention is on this. Could she also confirm that subsection (3) refers entirely to EDPs, not to wider powers? It just says:
“Natural England may pay another person to take conservation measures.”
If the noble Baroness can help with that, I would be grateful. I beg to move.
Lord Cromwell (CB)
My Lords, I have every sympathy with these amendments, which reflect wider concerns expressed about the capabilities of Natural England and those whom they will deploy, but I do wonder how they will work in practice. In that regard, I have three quick questions for the Minister.
First, will Natural England reveal to levy payers which organisations—and, equally importantly, which qualified individuals—will be given responsibility for using that levy payers’ money to deliver relevant EDPs, so that levy payers can, as stakeholders, have confidence in delivery? Secondly, will such levy payers be able to communicate with these individuals or organisations to learn of and discuss progress? Thirdly, how, and by whom, will these individuals or organisations be held to account for the work that they do?
Lord Blencathra (Con)
My Lords, I rise to address Amendments 319 and 320, as introduced by my noble friend Lord Caithness—I thank him for that. These important amendments seek to ensure that future environmental delivery plans are delivered by people or bodies that have the appropriate capabilities necessary for conservation projects.
Environmental delivery plans are centralised schemes that will thus pull together more resources than have previously been designated to environmental initiatives. That means an increase in both scale and responsibility. Delivering plans at an increased scale necessitates that those responsible have the required expertise—not only industry knowledge, but larger-scale management capabilities. Amendment 320 particularly speaks to that, as it expands the potential providers to include bodies, allowing delivery to be overseen by a wider and more diversified group of people.
Responsibility is higher with EDPs, as the use of pooled resources—necessarily greater than case-by-case funds—increases the risk of wasteful externalities. This means that providers must be prudent and resourceful. It is therefore important that those entrusted with delivering EDPs have the relevant experience and qualifications to mitigate waste and mismanagement and maximise the effectiveness of those schemes. These amendments seek to ensure that those paid by Natural England have the requisite skills. I look forward to the Minister’s answer to that and to the questions raised by the noble Lord, Lord Cromwell.
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?
The Earl of Caithness (Con)
My Lords, I am grateful. This has been very helpful. I beg leave to withdraw the amendment.
“(4) In monitoring an EDP, Natural England must take sufficient measures to monitor—(a) the effectiveness of the conservation measures that have been implemented, and(b) the effects of the EDP in general.(5) In deciding how to monitor an EDP, Natural England must have regard to guidance issued by the Secretary of State.”Member's explanatory statement
This amendment would provide more detail about exactly how Natural England must monitor its EDPs. It would also move the provision about guidance from clause 57 into clause 76.
The Earl of Caithness
Member's explanatory statement
This amendment, and another in the name of Lord Cameron of Dillington to clause 77, seeks to ensure that both statutory undertakers and private individual land managers are given equal treatment as regards the powers of entry to be exercised by Natural England.
The Earl of Caithness (Con)
My Lords, we now turn to the very important question of the powers to enter for Britain’s new Rostekhnadzor, the dominant state operator. I find it rather terrifying that a Bill can be put before your Lordships’ House by people who seem to be so out of touch with the real world. In Clause 77(3), a statutory undertaker—most likely in this case to be Natural England—gets 21 days’ notice, whereas in any other case the notice is 24 hours.
I understand that Natural England does not visit its trees very often, if at all. They probably do not need much management once they get going. Perhaps there is a bit of thinning to do or a felling exercise, but the people can go home at a set time to their families. Natural England will get 21 days’ notice for the benefit of that position.
On the other hand, the farmer will be working on their farm outside probably from 6 am to 9 pm. Then they come home, start to do their emails and suddenly find that they have Natural England coming the next day and that there is absolutely nothing they can do about it. Why is there this prejudice against non-statutory undertakers? Why are they given such a short time?
While on this part of the Bill, can I ask the Minister some more questions? Clause 77(2) states that the powers
“may not be exercised in relation to a private dwelling”
and quite right too, but are they exercisable in regard to a garden? That is a concern.
In Clause 77(4), why is notice not required for a second or subsequent visit? Surely that would only be courteous if they are going on to somebody else’s land. If it is a farmer’s land, they might be combining, they might be sowing or they might be getting sheep or cattle in for inoculation. They probably have a very full programme. Somebody appointed by Natural England then suddenly turns up. Would the Minister like it if that happened at home in Cumbria? She is about to catch the train down to your Lordships’ House and Natural England says, “No, you can’t do that, Minister. I need to speak to you now. Let us go and have a look at this”. This could be redrafted to be a lot better for the private individual.
The final point I put to the Minister is the question of notice in writing. When I was a surveyor, a letter in writing was all you could do. Can she tell me whether writing includes emails and social media? It comes through in written form on one’s dreaded machines. Will it be a signed letter like the one she sent us this morning, or can it be done a different way? I have asked lots of questions and it would be very helpful to have some answers. I beg to move.
Lord Blencathra (Con)
My Lords, I thank my noble friend Lord Caithness, and the noble Lord, Lord Cameron of Dillington, for their excellent amendments—excellent because I was a co-signatory. These amendments seek to ensure consistency in treatment between statutory undertakers and private individual land managers as regards the powers of entry to be exercised by Natural England.
Frankly, this was an unwelcome addition to the Bill in the other place, giving Natural England even greater powers than already envisaged. I have referred before, or my noble friend has, to Natural England being turned into an authoritarian empire. This is part of what I was referring to. These amendments would require that at least 21 days’ notice be given to both sets of parties by Natural England to enter and survey or investigate any land covered by this part of the Bill. This appears to be the least amount of respect that private landowners should be entitled to. There are major issues around biosecurity—the risk that entrants to land carry on animal disease or predatory species. Given Natural England’s activities across the country, there is a considerable and real risk involved in their entry.
Farms may also have livestock that pose some risk to visitors and need to be kept away from roads and public rights of way, but for the behaviour of which they remain liable. Giving the additional time would allow landowners and Natural England to consider the risks around the entry and sensible precautions that can be taken and warnings given.
We in the Conservative Party have always strongly believed in both equal treatment before the law and the importance of public and private land ownership. These are principles we will always continue to support and are rights that we believe all should have access to. I therefore welcome Amendments 321 and 322, and I am grateful for the opportunity to discuss them in further detail.
I hope that those who drafted this law did not take the view—we have no evidence that they did—that, “The public sector is good and can be trusted but private ownership is bad and cannot be trusted, so let us go in and speak to them straightaway”. As an aside, I say to my noble friend Lord Caithness that if inspectors arrived at the farm of the noble Baroness, Lady Hayman of Ullock, and wanted to see it immediately, if it meant she could no longer travel on a ghastly Avanti train with me I can understand why she would happily ask them to come in straightaway.
However, I trust that the Government will take these amendments seriously and I agree with the underlying principles. I await the Government’s response to them with anticipation.
Baroness Taylor of Stevenage (Lab)
My Lords, I do not want to disturb the travelling arrangements of noble Lords who live in Cumbria. Amendments 321 and 322, tabled by the noble Lord, Lord Cameron, and ably moved by the noble Earl, Lord Caithness, would extend the written notice period required before Natural England could demand admission to land. This is currently set at 21 days for statutory undertakers and at least 24 hours in other cases.
Although we agree it is important that adequate notice is provided, the provisions in the Bill are consistent with powers of entry in similar legislation. In aligning with other legislation, we are reducing the risk of confusion for landowners but also recognising the justified difference in treatment regarding statutory undertakers, such as utility companies, whose activities may be vital for public services and so may require additional preparation to protect public safety and to prevent disruption.
However, noble Lords have made some very good points and we will consider this further. It is also worth highlighting the additional safeguards in the Bill, such as ensuring that these powers cannot be used to gain access to private residences—I believe it says “residences” not “dwellings”, so I hope that covers the point about gardens that the noble Earl made. These safeguards further ensure that the powers cannot be used in any other manner other than for carrying out functions under this part of the Bill.
The noble Earl made a very good point about a second or subsequent visit. We do need to consider that further. He also raised the point about notice in writing. He is right to point to the fact that this could be an actual letter—a physical letter—or it could be an email; it could probably not be social media, because that would not be an appropriate way of communicating directly with the person concerned.
With that, and a commitment to discuss this further, I hope that, on behalf of the noble Lord, Lord Cameron, the noble Earl, Lord Caithness, will agree to withdraw the amendment.
The Earl of Caithness (Con)
My Lords, I think that is the most positive reply we have had from the Government in 48, 58, 68 hours. I am extremely grateful to the Minister for that. I feel she understands the point that my noble friend Lord Blencathra and I are after: fairness. I was involved as a surveyor in giving notices to people, and there are circumstances when 24 hours is required, but this is not emergency legislation. There should be no need for Natural England, if it is doing its job properly, not to be able to give a decent length of notice and treat people in a civilised manner. I am very grateful to her and look forward to hearing from her shortly. I beg leave to withdraw the amendment.
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
“(6) In this section “remedial action purposes” means purposes connected with the taking by the Secretary of State or another public authority of—(a) a conservation measure as mentioned in section (Remedial action by Secretary of State where EDP ends or is revoked)(4)(a), or(b) any other measure to improve the conservation status of an identified environmental feature as mentioned in section (Remedial action by Secretary of State where EDP ends or is revoked)(4)(b).”Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
“(2) In subsection (1), “remedial action purposes” means purposes connected with the taking by the Secretary of State or another public authority of—(a) a conservation measure as mentioned in section (Remedial action by Secretary of State where EDP ends or is revoked)(4)(a), or(b) any other measure to improve the conservation status of an identified environmental feature as mentioned in section (Remedial action by Secretary of State where EDP ends or is revoked)(4)(b).”Member's explanatory statement
This amendment is consequential on my amendment inserting a new clause after clause 64.
Member's explanatory statement
This amendment would remove the need for an annual report on EDPs to include an assessment of the effectiveness of all EDPs in force, which is considered no longer necessary in view of the changes made by my amendment to clause 62.
The Earl of Caithness
The Earl of Caithness (Con)
My Lords, this group relates to concerns about the wide-ranging powers afforded both to the Secretary of State and, most importantly, NE by this Bill. Amendments 326 to 332 seek to require the Secretary of State to have regard to the expertise of the person or bodies, giving greater accountability to the power to designate a person to take on NE’s responsibility. We touched on this a moment ago, and I hope the Minister will give a positive reply.
I particularly want to draw attention to Amendment 343 because this introduces a new clause which provides independent oversight for the administration of Part 3. This is important as the Bill currently invests power in Natural England that means it is both a regulator and a beneficiary, with limited ability for challenge—a point raised in earlier amendments. It is important, too, because we have also talked about the ability of Natural England to perform its current duties, let alone the duties proposed under the Bill.
I was at the launch of the IUCN UK Peatland Programme’s report yesterday and talked to a lot of people, and everybody was concerned about NE’s ability to do its job now and, with the financial pressures on it, whether there will be any hope of it doing the work proposed under this Bill satisfactorily in the future. Increased oversight would support greater adherence to scientific evidence—the subject of a number of amendments to the Bill—in the work that Natural England does.
There is also an absence of clarity in the Bill on the transparency and accountability of NRF distribution. We touched on that, and again that should be independently looked at. Amendment 361, which is in this group, is consequential on Amendment 343. The main point I come back to for the Minister is this independent oversight of the administration of Part 3. I beg to move.
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.
The Earl of Caithness (Con)
My Lords, I am grateful to the Minister for her reply. I agree with her that one does not want to increase costs, but if it means producing a better result for nature and a better outcome, the costs are worthwhile. I know that the Secretary of State has a role in this, but the Secretary of State and Natural England are quite interlinked and I was looking for somebody slightly set back. The OEP will certainly help, but it was highly critical of the original draft of the Bill and it is as a result of its criticism that the Government have sought to try to improve it. I wonder whether, in future, criticism will be effected to try to improve the situation if the OEP thinks that the Bill is not working in the way that it wants. However, I will read what the Minister says and perhaps we will discuss it between now and another stage. I beg leave to withdraw my amendment.
Baroness Coffey
“Pre-application biodiversity audit(1) Before a relevant planning application or application for development consent may be considered by a planning authority or the Secretary of State, the applicant must carry out and submit a comprehensive biodiversity audit of the proposed development site.(2) A “relevant planning application” means any application for planning permission, development consent, or reserved matters approval that involves—(a) land disturbance exceeding a prescribed area,(b) the creation or alteration of buildings exceeding a prescribed footprint or volume, or(c) any development within or adjacent to a site of ecological designation or significance.(3) For the purposes of this section, a “comprehensive biodiversity audit” means an assessment of the existing habitat types and their condition, and the ecological features present on the site and within its immediate vicinity, sufficient to establish a robust baseline biodiversity value.(4) The biodiversity audit must—(a) be undertaken by a suitably qualified and competent ecological professional,(b) employ a recognised methodology for habitat classification and condition assessment, and(c) include, but not be limited to, an assessment of habitat distinctiveness and ecological connectivity potential.(5) The results of the biodiversity audit, including a baseline biodiversity value calculation, must be submitted as part of the planning application or application for development consent.(6) A planning authority or the Secretary of State must not consider an application referred to in subsection (1) to be duly made unless the requirements of this section have been met. (7) The Secretary of State may, by regulations, make further provision about—(a) the prescribed areas, footprints, or volumes for the purposes of subsection (2),(b) the methodology and scope of biodiversity audits under subsection (3) and (4),(c) the qualifications and competence of professionals undertaking biodiversity audits, and(d) any exemptions from the requirements of this section for specified types of development or sites of negligible biodiversity value.”
Baroness Coffey (Con)
My Lords, I will speak to Amendment 335, tabled by my noble friends Lord Grayling and Lord Randall of Uxbridge. As I mentioned earlier, unfortunately they cannot be here at this stage. Their Amendments 335 and 336 are somewhat self-explanatory. It is important to have audits and that there is consideration of the baseline. I know we have had considerable debate on this—it seems it is just the nature of how debates happen in this place, depending on the groupings—so I do not wish to detain the Committee excessively by covering old ground.
My noble friends put a significant amount of detail into what qualifications anyone should have to undertake the audit and on having a recognised methodology. I think this is intended to make sure that we have consistency right across how audits are done. It has been a long-standing criticism of this part of the Bill that, if you do not know where you start, how do you know where you are going? The Government have sought to address some of those criticisms, but these amendments, in particular Amendment 335, are trying to put in the Bill a common starting point so that the overall improvement test of being significant or material, wherever we end up, can be achieved.
On Amendment 336, again, there are some technical elements in here. For the first time I have seen the phrase in an amendment, in proposed new subsection (4), “in an accessible manner”. Of course, all documentation from the Government and arm’s-length bodies should be published in an accessible manner, but this would ensure that the details of the biodiversity mitigation decisions are made very public, for everyone to see. That recognises how difficult it sometimes is and how often FoIs get rejected by a number of government bodies, and so having this in the Bill has merit.
Amendment 341, which I have tabled, is rather straightforward: it is about allowing ponds. I am conscious that over two-thirds of ponds that existed in England in the 19th century have now disappeared. Ponds support two-thirds of freshwater species, providing an ideal habitat for invertebrates such as whirligig beetles, damselflies and dragonflies, and they are a key hunting ground for flycatchers, warblers and many other birds which rely on insects for prey—including swifts, which we have debated at some length.
Ponds are also a vital habitat for amphibians, including natterjack toads, common frogs and smooth newts, and the decline in pond habitats therefore has had a negative impact on UK species abundance, with one in six species currently at risk of extinction. Ponds are also a nature-based solution to the growing risks of flooding and drought. They help to hold water on the land. They slow the flow of water during periods of heavy rainfall, thereby helping to prevent flooding downstream. In periods of drought, ponds can act as a natural reservoir, storing water on the land when it is scarce.
Baroness Grender (LD)
My Lords, Amendments 339 and 345 are in my name; each provides critical innovations for the protection of nature and heritage trees in England.
The new clause proposed by Amendment 339 would introduce wild belt as a legal category in planning considerations and require the Secretary of State to establish protections within six months of the Bill’s passage. The purpose is clear: wild-belt designation would permanently safeguard nature-rich areas and their associated ecosystems, extending well beyond the traditional boundaries of green belts or isolated wildlife reserves.
The UK faces a biodiversity crisis, with only around 3% of England’s land effectively managed for nature, an insufficient figure compared with the country’s 30% by 2030 target for habitat restoration. Current planning policy has lacked a tool for protecting sites in recovery, or those being actively restored to higher ecological value. Amendment 339 would fill this legislative gap, empowering local planning authorities and strategic bodies with guidance for identifying, protecting and reporting on wild-belt sites, and promoting public access to nature-rich spaces.
Wild belt would operate alongside existing designations, such as green belt and sites of special scientific interest, creating new, joined-up areas that enhance ecosystem connectivity. Crucially, wild-belt designation encourages the restoration and protection of not only land but water bodies and wetlands, and I am delighted to be in the same group as the noble Baronesses, Lady Coffey and Lady Bennett, standing up for both ponds and trees. In the long term, it will help address habitat fragmentation, support climate resilience and benefit public health. Natural England estimates that green spaces such as wild belt can save the NHS approximately £2.1 billion annually, through improvements to mental and physical health—a testament to their broad social, as well as ecological, value.
The new clause proposed by Amendment 345 would establish heritage tree preservation orders, responding to a major gap in current tree preservation order law. Existing TPOs focus on amenity, but heritage trees—those of significant historic, ecological or cultural importance—require elevated protection and clear statutory recognition. I thank my noble friend Lady Tyler, the noble Baroness, Lady Young, and the noble Lord, Lord Parkinson, for supporting this amendment.
The scale and significance of England’s heritage tree resource are striking. The Ancient Tree Inventory records over 233,000 ancient or veteran trees. Academic modelling suggests that there may be 1.7 million to 2.1 million across the country, indicating underreporting, and therefore associated risks. A single heritage oak tree can support roughly 2,300 species, so the harm or loss of such trees has outsized impacts on biodiversity. Amendment 345 gives planning authorities new powers to issue dedicated preservation orders and sets higher penalties for any damage. The shocking loss of the Sycamore Gap tree underlines the need for this—along with the Whitewebbs oak in Enfield, which has been mentioned by my noble friend Lady Tyler. It would also require advertising of heritage status and associated legal obligations, and develop partnership agreements for long-term management.
Crucially, Amendment 345 would create a statutory register for heritage trees, giving Natural England responsibility for identifying, publishing and maintaining the list. This would promote transparency, consistent protection nationwide and proactive stewardship, not reactive enforcement after harm has occurred. Owners and occupiers would be compelled to take reasonable care of heritage trees and would be liable for costs if the state must intervene, setting a clear expectation for shared custodianship.
This tiny amendment is like an acorn. If it could be planted in this Bill, it might grow into a mighty oak, spreading its branches throughout the nation, and protecting our heritage trees. I hope that the Minister agrees.
Baroness Young of Old Scone (Lab)
My Lords, I support the noble Baroness, Lady Grender, on Amendment 345 on heritage trees, to which I put my name. This amendment echoes the key provisions of my heritage tree Private Member’s Bill, which, alas, ran out of road at the last ballot. It remains in my heart, and I shall continue to re-ballot it on every possible occasion.
The noble Baroness, Lady Grender, has ably made the case that heritage trees are really important for history, culture and biodiversity, but they have remarkably little protection and are threatened by development, by deliberate damage—as with the Sycamore Gap tree—by inappropriate management or by sheer neglect and lack of management. The provisions of this amendment would bring protection to these important trees, and there is already the beginnings of a register, as proposed by the amendment, in the Ancient Tree Inventory. The Government have shown signs of interest in this in the past and asked the Tree Council to investigate and report on the issue. The Tree Council submitted its report in spring 2025, and concluded that trees of high social, cultural and environmental value are only indirectly protected, with significant legal gaps, and recommended the development of a “robust and effective system” to ensure that they are safeguarded. Other countries, such as Poland and Italy, have very effective protections.
Examples of socially, culturally and environmentally important trees lost in the last few years include the 300 year-old Hunningham oak near Leamington, which was felled to make way for infrastructure projects in 2020. There was a tree in Hackney called the Happy Man tree, which was the named tree of the year in 2020, but was felled in 2021 to make way for a housing development. There were 60 wonderful ancient lime trees in Wellingborough which were felled in favour of a dual carriageway in 2023. There are lots of examples of historic and culturally important trees, as well as their biodiversity significance, simply failing to be protected. I think that the outpouring of grief and rage that arose from the felling of the Sycamore Gap tree shows just how much the public value these trees, and, indeed, that was reflected in the sentencing.
I asked the Government in a Written Question on 17 July what progress they had made in implementing the recommendations of the Tree Council. The noble Baroness, Lady Hayman, replied:
“We are carefully considering expert recommendations laid out in the Tree Council and Forest Research report. It will be important”—
note the weasel words here—
“to balance our approach with existing priorities and our statutory obligations. We recognise the value of our most important trees and consider all ancient and veteran trees to be irreplaceable habitats”.
I ask just three questions of the Minister. First, am I right in summarising her response to my Written Question as, “Push off: they are irreplaceable habitats already. We aren’t going to do anything more to proceed with this report and protect them”? Secondly, if that is not the case, when and if will the Government come forward with an action plan following the Tree Council and Forest Research report? Thirdly, if they are not going to respond to the Tree Council report with an action plan, will she accept this amendment? I look forward to her response.
The Earl of Caithness (Con)
My Lords, I support my noble friend Lady Coffey’s Amendment 341, which refers to ponds. She was quite right to mention floods and drought. I would just like to follow up on that and remind your Lordships what happens with flood and drought. It is the loss of topsoil that is so damaging to farms. If one has ponds, one can collect the topsoil before it does further damage. It does further damage in two ways.
First, if you are near a chalk stream, you get silt going into the chalk stream, which is destroying the environment of the chalk stream. A chalk stream should not have silt in it. I remember speaking in the House last year, I think, about chalk streams and how a sudden thunderstorm had turned a chalk stream from being a crystal gin-clear stream, as it should have been, into a dirty brown river, and the damage that that was doing to the environment of the chalk stream.
Secondly, if the water catchment area goes into a reservoir, a huge amount of topsoil is filling up reservoirs. One might look at a reservoir once it is full of water and think, “Gosh, that’s a really big reservoir”, but one finds that actually a third of it is silted up from years of run-off from the adjoining land. Having ponds that stop that must be a good idea. They can easily be sited in areas of unproductive farmland.
I also notice the interpretation of a pond. My noble friend was absolutely right to mention that this should be permanent or seasonal. With the recent flooding we have had, there has been some terrible damage to farmland, sometimes where a pond would have stopped the damage. It would not be a permanent pond, it would be a seasonal pond, but it would help to reduce the damage to farmland from the run-off of the heavy rain. I hope that the Government will look at that amendment particularly carefully.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak chiefly to the amendments in the Green group’s name in this diverse but very important group. I will briefly mention Amendment 345, already powerfully and poetically spoken to.
In the discussion, we heard so many sad stories of the trees we have lost. As a Save Sheffield Trees campaigner, it made me think of two magnificent specimens in Sheffield: the Chelsea Road Elm and the Vernon Road Oak in Dore, where communities had to make enormous efforts—including risking life and limb and arrest—to save those trees. The amendment would create a mechanism to make sure that those efforts could be put towards more constructive activities, rather than defending what is already there.
I shall speak chiefly to Amendment 346 in my name, which calls on local authorities to report on land contamination, raised by the noble Baroness, Lady Hayman, in both groups. My amendment raises Zane’s law. I have essentially tabled it before, to the Building Safety Act and the Levelling-up and Regeneration Act, when they were passing through the House. The whole campaign for Zane’s law has developed significantly since then. This is a probing amendment, because a lot has happened since we last discussed this, when the Minister was then sitting beside me on the opposition Benches and expressing interest in the issue.
It also offers the Government a suggestion for at least a partial way forward. This is a very urgent issue, which has been acknowledged. Recently, in July, the Mayor of London backed a Zane’s law, pushed very much by London Assembly Member, Zack Polanski. Just a few days ago, a motion moved by the Fire Brigades Union at the TUC conference, also backed by the NEU, Unison, Unite and the CWU, called for a Zane’s law.
There have been many new noble Lords since the last time we discussed this in this House. Zane’s law is named after the seven year-old Zane Gbangbola, who died in February 2014 during flooding of the River Thames at Chertsey in Surrey. Zane’s parents, Kye and Nicole, know that he was killed by toxic hydrogen cyanide gas from a former waste dump. His father was left paralysed by that gas. That is not what the inquest says, but everyone knows that is the fact. Indeed, I note that Zane’s parents recently had a meeting with the Prime Minister to discuss the Truth About Zane campaign and to see what could be done to finally get the record set straight.
This is about an issue that directly affects many people. In June, I held a Zane’s law summit here in Parliament, acknowledging that current UK regulations on contaminated land are grossly inadequate and a threat to the safety of many, particularly given climate breakdown, rising sea levels, increasing rainfall and flooding. That summit heard from campaigners around the country on very significant issues. The case of Zane is about a historic landfill which was closed off many decades ago. There are ongoing, immediate landfill issues which are not being properly dealt with, and which Zane’s law would deal with more broadly.
I have to acknowledge and give all credit to the Government that the then Environment Secretary, Steve Reed, came to the summit, where he said that the Government knew that there needed to be more transparency about contaminated land and that they would publish a new state of contaminated land report in spring next year. One thing I am looking for from the Minister today is a report on how that is going—a reassurance that progress is being made. The Secretary of State said at that meeting that the department is developing a land remediation pathfinders scheme to provide financial support to councils to remediate land that is contaminated. With this amendment, I hope to hear from the Minister about what progress is being made. Of course, we have seen a change of personnel in her department since then, but I would like to hear what is happening.
I also want to raise a further issue, which has been raised with me. I will understand if the Minister wants to write to me about it. As the pressure and the campaign for Zane’s law grow, I am hearing reports that landowners might be selling what they know to be contaminated land, even if it is not properly identified and fully understood, and trying to basically dump it before further action is taken. Does any agency or institution have a duty to record, report or interact when there are such disposals or purchases? We know that there is a big issue coming; how can we ensure that innocent buyers and communities do not get dumped with land like this?
I come now to Amendment 346A, tabled by my noble friend Lady Jones of Moulsecoomb, which fits more closely in this group, dealing as it does with trees. As the noble Baroness, Lady Grender, said, we are going backwards in terms of biodiversity and on issues around trees and so on. According to the State of the UK’s Woods and Trees 2025 report, roughly 40% of our ancient woodlands, the UK’s most biodiverse temperate habitat, are being damaged by plantation forestry, making their restoration a priority to meet the Government’s 2030 nature recovery targets. Here is a truly shocking figure: in 2023, 6 hectares of damaged ancient woodlands were restored, but the target for the year was 5,000 hectares—so six hectares versus 5,000 hectares.
Crucially, this amendment would create a duty for the appropriate forestry authority—in many cases, this will of course be the Forestry Commission—undertaking any planning or development function relating to forestry land, or taking any part in any exercise in such functions, to prioritise achieving the targets under Sections 1 to 3 of the Environment Act 2021 and targets in the environmental improvement plan, as well as following, of course, their duties under the Climate Change Act 2008. This would ensure that the Forestry Commission took all reasonable steps to contribute to the legally binding targets for nature recovery and climate mitigation and adaptation.
I think that I have previously debated this issue with the Minister. The Forestry Commission’s current legal remit is outdated. Its primary duty, as established in the Forestry Act 1919, is to promote timber production, so that is the job it is being given. There is only a vague conservation duty, which was added in 1985, a very long time ago. That 1985-added duty lacks clarity and enforceability and does not align with the UK’s environmental targets. We need to do this simply to protect nature and to act on the climate. If the forestry estate is open to renewable development through the Bill—and eventually the Act—it is vital that its decisions do not undermine irreplaceable habitats. Updating the Forestry Commission’s remit is timely, necessary and, as we know, widely supported by the public and the conservation sector.
Lord Lucas (Con)
My Lords, I have the last amendment in this group. I very much support my noble friend Lady Coffey on her ponds amendment. We are short of ponds in the landscape, generally, and they should not be hard to create. I like the idea of wild belt, but I am not convinced that we can compel anyone to create a natural environment in this country. We lack the natural systems that would maintain a natural environment. Anything in this country has to be managed, but to have places set aside for nature and properly managed seems a much better concept than a green belt. It is much easier for people to enjoy and much easier to look after.
My amendment says that we should recognise that construction and demolition activities cause disruption to nature, much as we recognise that wildlife can cause disruption to growing crops. The Government have recognised this in relation to wind farms; they accept the damage to wildlife that wind farms cause. What we do causes damage to nature. If I was to put on my house a bird box and a bat box, there would not be a single month in the year when I could repaint my house without some risk of disturbing wildlife. We need to take a realistic attitude to this, which I hope is what my amendment does.
Lord Blencathra (Con)
My Lords, I rise to address the amendments in this group. There are some important amendments here, some that raise interesting concepts and some that are apparently sexy but may be difficult to implement. Biodiversity is vital to preserving our ecosystems, which in turn provide clean air, water and food. It holds significant cultural, aesthetic and economic value, supporting industries such as tourism and agriculture. I thank my noble friend Lady Coffey for moving the amendment in the name of my noble friend Lord Grayling concerning biodiversity.
Amendment 335 seeks to ensure that a biodiversity audit is incorporated into the planning application process or application for development. I recognise the potential merit in integrating biodiversity considerations at this stage in the planning process and I keenly await the Government’s response. I agree entirely that, as far as EDPs are concerned, one must do an audit at the beginning to know what one has before one can say later whether it has improved, got worse or stayed the same—I hope that the Government will correct me if I am wrong—but I think that my noble friend’s amendment may refer generally to planning applications, where a balance has to be struck. I can see the benefit of doing an environmental audit beforehand, when it might speed things up and cost less, but doing it afterwards might also speed things up and cost less. I would like to know what the Government’s thinking is.
I understand that, before I joined Natural England, about eight years ago it reached out to HS2 and said, “We know that you’ll be doing a lot of work on the route. You may come across some biodiversity problems. Talk to us in advance and we’ll see if we can sort it out”. I understand that Natural England was told, “Pooh, pooh. We don’t need you involved in this. We know what we’re doing”. By not involving Natural England in the early planning stage, HS2 hit the bat problem, which is when it invented the £110 million tunnel. So there can be merit in getting nature bodies and the developers involved with Natural England early in the planning stage.
Amendment 336 calls for transparency in offsite biodiversity mitigation decisions. If the amendment were to pass, the Government would be required to publish a statement setting out the scientific basis for that decision. Government accountability is a principle on which Members on both sides of the Committee agree and I thank my noble friend for his contribution and my noble friend Lady Coffey for moving the amendment.
I also thank my noble friend Lady Coffey and the noble Baroness, Lady Grender, for their amendment contributions. These amendments seek to provide important protections for potential wild-belt areas and their associated ecosystems. I particularly like my noble friend’s amendment on ponds. It is an excellent idea and, if the Government do not accept it, I would like to hear a good reason why.
On heritage tree preservation orders, I can tell the Committee that on 27 September 2023 I was driving back from Newcastle along the Hadrian’s Wall road—well, my wife was driving and I was sitting in the passenger seat, giving my usual expert guidance on how to drive, as men often do. She said, “We’ve driven past this gap for years. Why don’t we go and look at it?” I said, “Well, you can go if you like. I’m not going to try to stagger up there. It’s about to rain”. That night, a few hours later, those swine cut down the tree. It grieves me that I did not try to stagger up to look at it. The Sycamore Gap tree was iconic. The word “iconic” is not in the amendment, but the tree, although it was not of cultural significance, was of iconic significance. I like the concept of the amendment. My only worry is that the definition seems rather wide and that it lands it all on Natural England, which is not geared up to do this.
If this amendment were to pass, I suspect that, within one month, Natural England would have a million letters from people saying, “You must ledger this tree, that tree and that tree”. It could not just say, “Thank you very much, it’s all in the register now”, and tick the box; it would have to investigate every single one, it would have to see whether it was genuine or not and, no doubt, there would have to be a review process, as people would demand that a tree be taken off the list or added to it. So, I like the concept and I agree with the noble Baroness, Lady Young, that something must be done, but I also agree with the noble Baroness, Lady Hayman, that we need to do it properly and find an easy way to do it that protects all the right trees, but not at a huge bureaucratic cost.
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.
“Sustainable drainageThe Secretary of State must bring into force in England all uncommenced parts of Schedule 3 of the Water Management Act 2010 (sustainable drainage) within three months of the day on which this Act is passed.”Member’s explanatory statement
In England, developers have the automatic right to connect surface water arising from new homes to the public sewerage system, irrespective of whether there is capacity for this. Implementation of Schedule 3 of the Flood and Water Management Act (2010) would end this automatic right to connect and provide a framework for the approval and adoption of Sustainable Drainage Systems (SuDS), paving the way for their widespread use.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to have reached this small but perfectly formed group of amendments in my name. I take the opportunity to thank for their support the noble Baronesses, Lady Young of Old Scone, Lady Jones of Moulsecoomb—I wish her a speedy recovery for her toe—and Lady Willis of Summertown. I am very grateful to them all.
If I could declare my interests, I am co-chairman of the All-Party Parliamentary Group for Water and an officer of the All-Party Parliamentary Group on Flooding and Flooded Communities. I have co-authored a number of Bricks & Water reports with the Westminster Sustainable Business Forum, and I am very grateful for its support on that.
I will initially set out the contents of the amendments and then explain why I think the Government should support them or come forward with their own amendments in lieu on Report. Turning first to Amendment 337, as the Explanatory Notes make clear, developers currently have an automatic right to connect surface water arising from new homes to the public sewerage system, irrespective of whether there is capacity for it or not. Implementation of Schedule 3 to the Flood and Water Management Act 2010 would end that automatic right to connect and provide a framework for the approval and adoption of sustainable drainage systems, paving the way for their widespread use.
Baroness Young of Old Scone (Lab)
My Lords, very briefly, I support this amendment. If we pass legislation, it is important that we actually commence it. As the noble Baroness so ably presented, this is a real gap and it is has become even more imperative as we seek to up the level of development. I hope that the Minister will recognise the need and agree to press forward with bringing this schedule into operation.
Baroness Bennett of Manor Castle (GP)
Given that my noble friend Lady Jones of Moulsecoomb signed this amendment, I just briefly reinforce what the noble Baronesses have already said. The noble Baroness, Lady Young of Old Scone, made the point about laws being passed and then nothing happening. That is a problem both for industry—in this case, developers—and for local councils, which are left in a state of uncertainty, not knowing where they are going with this. People start to prepare, read up and think about it. I should perhaps declare my position as a vice-president of the Local Government Association at this point.
There is also an issue of trust with the Government—something that we discuss often in your Lordships’ House. A classic example of this is the bottle deposit scheme that we are all still waiting for after it was announced so long ago. Many people out there still believe that, when a Government announce something, it will happen—it is already on the way. Probably more people believe that, once a law is passed, that will happen. When it does not happen, there is then a real problem with trust in the Government.
I can trace my knowledge about sustainable urban drainage schemes to 2006, when the first Green was elected to Islington Council. I can remember her talking excitedly about how crucial it was to deal with local flooding issues as well as environmental issues. I had not yet learned the phrase “slow the flow”, but that is of course very much what urban drainage is about. I also recall visiting, some years ago now, Cherry Hinton Brook near Cambridge—I bring up chalk streams again, just for one final time. I talked to local people concerned about a proposed development there, what was happening with the sustainable urban drainage scheme and how it would potentially be managed. What is crucial about Schedule 3 is that it provides a framework for construction but also for oversight of management because, very often, sustainable urban drainage schemes cannot just sit there; they have to be managed throughout their lifespan for many decades. If we do not have everything set out here—the required technical analysis, the inspections and the responsibilities —as it is in Schedule 3, then we will be stuck with schemes that have been built but are not being looked after.
Baroness Coffey (Con)
My Lords, I strongly support this amendment. To lift the curtain a little bit on life in government, it is one of my disappointments that we did not get this enacted. I perhaps have to dob people in: it was the Ministry for Housing. We had finally got there with Plan for Water, where it was adopted as a policy. We managed to get it in there and we did the review—it was all beautiful. I am pleased that the Government did the standards; they published that in July. It just needs this final push. Now that Steve Reed has moved from Defra to the Ministry for Housing, I hope that he will take full advantage of being enlightened about the benefits of ensuring that we have proper connections and sustainable drainage and, candidly, that we can get on with it and the Government take advantage of this primary legislation to ensure that it happens.
Lord Blencathra (Con)
My Lords, I will speak to Amendments 337 and 342. I thank my noble friend Lady McIntosh of Pickering for her speeches tonight. She cares about these issues deeply and I commend her for her hard work. I am sure that the Committee is united in agreement that the environment is an important factor worthy of consideration in any planning Bill. I share my noble friend’s concern about building on the flood plain. Travelling down from Carlisle to London every week, at certain times of the year I look out of the window and see that scruffy low-lying land knee-deep in water. Six months later, they are building houses on it. I wonder whether someone somewhere in government should do something about it. Thank God that it is not me.
Baroness Taylor of Stevenage (Lab)
My Lords, I thank the noble Baroness, Lady McIntosh, for tabling these amendments and for her thorough introduction. I meant the other day to ask the noble Baroness, Lady Bennett, to take our very good wishes for a speedy recovery to the noble Baroness, Lady Jones, who I hope is recovering quickly. I am sorry that I did not do that before.
Effective implementation of SUDS, including adoption and maintenance, can reduce the impact of new developments on sewers by adding up to 87%, creating headroom for additional developments where they may not be possible with only conventional drainage. I have previously shared with the noble Baroness, Lady McIntosh, some of the outstanding schemes that I have seen in Sussex and with the noble Lord, Lord Lansley, in Cambridge. The responsible developers make provision for the ongoing maintenance of these schemes. We need to see sustainable drainage in more developments, to designs that cope with changing climatic conditions, deliver wider water infrastructure benefits and help to tackle our water pollution problems. We have already taken steps to improve the delivery of SUDS through the planning system. The update to the NPPF, published on 12 December, expanded the requirement to provide SUDS to all development with drainage implications. I restate that, although the NPPF is not a statutory document in itself, it is part of the statutory planning system.
Sewerage undertakers have the ability to refuse a connection where it appears to them that it would prejudice their network or not meet their reasonable standards. There is no automatic right to connect to a sewerage system. The Independent Water Commission, chaired by Sir Jon Cunliffe, is reviewing the water sector regulatory system in England and Wales. The UK and Welsh Governments will consider the report, including whether it has implications for the right to connect. That report should be factored in before considering any potential legislative changes to Section 106. Regardless, the Government are strongly committed to requiring standardised sustainable drainage systems, or SUDS, in new developments and are considering how best to implement our ambitions.
The Government published updated non-statutory national standards for SUDS in June 2025, which were welcomed by stakeholders as a positive step. We intend to consult on the national planning policy related to decision-making later this year, including policies on flood risk and SUDS. I will take back the noble Baroness’s point about run-off, because it would be useful to consider that at the same time. Also this year, we will consult on ending freehold estates, which will include options to reduce the prevalence of private management arrangements for community assets including SUDS. For this reason, I hope that the noble Baroness will withdraw her amendment.
Baroness McIntosh of Pickering (Con)
I am grateful to all who have spoken and those who have supported the amendment: the noble Baroness, Lady Young, who echoed my concerns about why the original legislation was not implemented; the noble Baroness, Lady Bennett, for reminding the House about the “slow the flow” scheme, particularly the Pickering pilot scheme that I was closely associated with; and my noble friend Lady Coffey for pointing out the reason for the blockage and delay. It is like, “We are going to do it, but just not yet”. There is a degree of urgency and let us bear in mind that, as my noble friend Lord Blencathra on the Front Bench pointed out, if your house was built on a flood plain since 2009, you cannot be insured, or the only insurance that you can get is probably so cripplingly expensive that you cannot afford it.
For a host of reasons, I believe that the time is now. I was told during the passage of the levelling-up Act that we would have to wait for a different opportunity. The time is now, so I will revert to this at a future stage of the Bill. For the moment, I beg leave to withdraw the amendment.
Lord Ravensdale
“Development for reasons of national security or energy security in the absence of an EDP(1) The Conservation of Habitats and Species Regulations 2017 (SI 2017/1012) are amended as follows.(2) In regulation 64 (Considerations of overriding public interest), at end insert—“(7) In paragraph (1), “imperative reasons of overriding public interest” may include a situation where—(a) the Secretary of State considers that the development is necessary—(i) for reasons of national security, or(ii) in relation to the generation and conveyance of low carbon electricity, energy and security, and(b) no environmental delivery plan under the Planning and Infrastructure Act 2025 applies to the plan or project(8) In paragraph (1), “no alternative solutions” should be read to mean no alternative solution which can be delivered whilst maintaining reasonable development costs.(9) “Low carbon electricity generation” has the meaning given in section 6(3) of the Energy Act 2013 (Regulations to encourage low carbon electricity generation).”(3) In regulation 68 (Compensatory measures), at end insert—“(2) The Secretary of State may disapply this regulation where—(a) the appropriate authority commits to alternative compensatory environmental measures, and(b) the Secretary of State considers these measures—(i) have a higher environmental value than any compensation measures which would be necessary to meet the requirements of this regulation, or(ii) are necessary to maintain reasonable development costs.(3) Within six months of the day on which the Planning and Infrastructure Act 2025 is passed, the Secretary of State may publish guidance setting out how reasonable development costs are to be assessed in relation to this regulation.””
Lord Ravensdale (CB)
My Lords, I declare my interests as a chief engineer working for AtkinsRéalis, and as co-chair of Legislators for Nuclear. This group of amendments gets to the heart of some of the issues with this Bill. It is important that we get Britain building again, not least to reverse the long stagnation in the UK economy since 2008. The Chancellor tells us that growth is the problem, and investment is the solution, which I wholeheartedly agree with.
There is a significant risk that Part 3, the centrepiece of this Bill, is not going to deliver for complex infrastructure. The reasons are straightforward: Part 3 may work for a known issue such as nutrient neutrality for a housing development, where developers can club together and pay into a fund. However, for infrastructure developments, habitat issues will not be known in advance, and there will not be time for developers to agree and implement an EDP before consent. Therefore, they are left with a couple of options: they can try to twin-track, which could risk adding even more bureaucracy to the process, or go the existing route. We all know the issues with the existing route—bat tunnels and fish discos have been well-publicised—but less well known are the years-long delays to offshore windfarms due to issues with compensation for environmental impacts and the like.
For example, we have had multi-year delays to the trio of Norfolk offshore wind projects—Norfolk Vanguard East, Norfolk Vanguard West and Norfolk Boreas—due to issues around compensation for an undersea worm, Sabellaria reef, even in areas where it was not present. That is not to mention cutting the size by around 40% and the generation potential of East Anglia ONE North windfarm due to habitat issues with red-throated diver, despite assessments putting the impact at one bird death per year.
Ultimately, if the Government want to meet their ambitious targets for clean energy and growth, they will need an approach that delivers for infrastructure, as well as for housing. For energy, we have managed to build approximately 4 gigawatts of new capacity per year over the last three years. To meet the Government’s clean power target, that will have to increase to at least 15 gigawatts per year between now and 2030—from the Government’s own data—so that is a quadrupling of our current build rate. A lot of that is offshore wind, and I should be clear from my examples that this acceleration in build rates simply will not happen under the current regulatory regime.
At the foundation of all this are the habitats regulations, which are of course very important for the protection of nature in this country but which have become overly burdensome due to the impacts of case law over the years and an overly precautionary approach by the regulator in some cases. Amendment 350 in the name of the noble Lord, Lord Hunt of Kings Heath, proposes some minor changes to steer the interpretation of the habitats regulations back to their original intent to protect nature but to strike a balance. This has been developed in broad consultation with planning lawyers and ecologists who have decades of experience in taking large projects through the planning system.
The amendment provides a menu of options for the Government. One of those is defining a science-led approach, which is important because too often the statutory nature conservation bodies require developers to provide evidence against hypothetical rather than real risks. I am vice-chair of the POST board—the Parliamentary Office of Science and Technology. POST is the link between the scientific research community and Parliament, and we work to ensure a science-led approach to lawmaking. This is an area where it is vital that we ensure that we take a scientifically rigorous approach.
The second part of the amendment would overturn some aspects of case law to get to a more proportionate approach, stating that de minimis effects cannot produce an adverse effect; that mitigation measures can be taken into account when deciding whether a proposed project is likely to have a significant effect; that there is no need to redo a habitats assessment for approval of conditions under a consent that was originally subject to a habitats assessment; and, finally, that compensation measures need not address the same type or scale of impact as the harm caused nor be in place before impact occurs, which restates existing law. I will leave the noble Lord, Lord Hunt, to fill in the detail.
The package of measures in Amendment 350 is a pragmatic and proportionate means of restoring some balance to a system that is currently making it extremely difficult to build infrastructure in the UK. One of the key benefits of what we are proposing is that it would have immediate benefits for a range of projects around the UK. It does not need additional regulations to be developed and raised nor EDPs to be developed; the impact is there straight away.
Amendment 346DA in my name is in the same vein and attacks the problem from a different angle—again, I thank the noble Lord, Lord Hunt of Kings Heath, for his support. It seeks to recognise that there are perhaps narrowly defined classes of projects which should be able to cut through the usual process. For example, we are building offshore wind, which is vital to our energy security and therefore to our national security. Is it really acceptable that these developments have been held up for years because of delays to compensatory regimes under the habitats regulations? Can we really afford to delay infrastructure that is key for the Government’s net-zero target, for energy security and therefore national security in this way? I suggest not, and that there could be certain classes of project, those related to national security and energy security, where the Secretary of State should have additional powers to allow projects to proceed and to work to define their own compensatory measures.
Between Amendments 350 and 346DA, we have a package of options for the Government which seek to recognise the issues of Part 3 for infrastructure and ensure that the Bill delivers for growth—I add to this my previous Amendment 46 on regulators. Ultimately, we need to strike a better balance between the impact of infrastructure on the local environment—the micro view—and the benefits of that infrastructure for the nation, whether that is net zero, energy security or economic growth: the macro view.
We have heard some rumblings in the news about a second planning Bill focused on infrastructure. I do not know the truth of that, but my observation is that we cannot wait for another Bill; we simply do not have the time. The Government need to seize the opportunity that the Bill represents and ensure that it delivers for infrastructure, and I restate the immediate benefit that these amendments would have. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, it is a great pleasure to follow the noble Lord. I thank him for his amendments and for his support of mine. In fact, he very ably summarised my amendments. It is clearly important and good that we are getting back to what the Bill is all about: the growth agenda. As the Explanatory Memorandum and policy background state, we have a huge problem in building the infrastructure that we need to get this country going again and growing again. The Bill is obviously designed to help us do that, particularly through the planning reforms, EDPs and so on. The big question is whether the Bill is sufficiently focused to give us confidence that our regulatory system is not going to prevent the kind of rapid growth that we need. This is where there is some concern.
Lord Lucas (Con)
Not for the first time I find myself entirely in agreement with the noble Lord, Lord Hunt of Kings Heath. I therefore do not need to take a lot of time on my amendment in this group, which originates with Catherine Howard of Herbert Smith Freehills Kramer and her Project Nutcracker and is intended to address the problems caused by three legal cases—People Over Wind, Sweetman I and CG Fry—and provide a hook for statutory guidance aimed primarily at addressing the customs and practice of the statutory nature conservation bodies.
Baroness Young of Old Scone (Lab)
My Lords, I do not know where to start on this one. I must admit that, if I had had the neck of the noble Lord, Lord Hunt, in my hands this morning after reading the Telegraph article, he would no longer be here to press his amendment tonight.
Lord Hunt of Kings Heath (Lab)
My Lords, that does not sound very comradely, if I may say so.
Baroness Young of Old Scone (Lab)
I am definitely not feeling comradely right now.
We must get away from this polarisation. These amendments, jointly in the names of the noble Lords, Lord Hunt and Lord Ravensdale, are valuable and worth considering, particularly in the area of infra- structure. But they are complex, and they need calm and informed judgement and analysis before we go overboard for them. We will not stay calm, and we will not have orderly evidence-based judgement, if we get the sort of article that reports in the way that the noble Lord, Lord Hunt, has been portraying it, in places—some of which he reflected this evening.
The ENGOs are not on an ego trip. They are not intrinsically against growth. The regulators are doing their best job with their resources against habitats regulations that were invented in order to stem this massive decline of biodiversity in this country, which threatens our existence. Every species extinction foreshadows our own. We have to get away from this belief that somehow everybody else in Europe implementing the habitats regulations is doing it with less purity, and is being far less up themselves— if noble Lords will pardon that unparliamentary language—than we are. The reality is that most places implementing the habitats directive are not trying to maintain and recover biodiversity in an area that is as densely populated and as much contested, in terms of land use, as this country is, particularly England. We have to bear that in mind: we are trying to cram an awful lot into a very small space of land, particularly in the south-east and around our coastal regions. So let us get off the polarisation argument.
The Telegraph piece is headed:
“Eco-zealots are crushing the economy”.
That does not foster good and sane debate. It says that
“the anti-growth environmental quangos are blocking developments on spurious grounds”
and that Natural England has an “anti-growth” mindset. I do not believe any of these points. It may well be that the noble Lord, Lord Hunt, has been quoted incorrectly, but from what he said tonight I do not believe that. It would be very unfortunate if we fell into the trap of polarising growth against development; we are smart enough to do both, and there is real commitment across conservation interests to do that. So let us stop winding up this debate in an irresponsible way.
I was going to go on to many of the other reasons for delay in the planning system but, at this time of the night, I will not. I will simply say that, when you talk to developers who are not on their soapboxes about the barriers they face, you find that the barriers are not solely environmental; there are many others. It is an example of the poverty of the noble Lord’s case and the way he is making it—not necessarily its basic tenet—that he quotes the old, hackneyed example of the HS2 bat tunnel. The problem with the HS2 bat tunnel was the problem of HS2, not the problem of nature conservation. If, as we had recommended 20 years ago, HS2 was called MS2, Medium Speed 2, it would have been possible to have mightily reduced the cost of the whole project by taking 20 miles an hour off the top speed and allowing the route to wiggle around all the things that we have now spent a fortune compensating for.
Lord Hunt of Kings Heath (Lab)
If my noble friend would let me correct a point, I did not mention bats at all; I mentioned my experience of Hinkley Point C, which is very different.
Baroness Young of Old Scone (Lab)
I apologise to the noble Lord for that, but the article in the Telegraph said that, on the night he was quoted, he talked about bats.
Lord Hunt of Kings Heath (Lab)
My Lords, I was at a conference yesterday, and the Telegraph reported on it. The headline is not my authorship.
Baroness Young of Old Scone (Lab)
I look forward to a detailed account from the noble Lord as to what exactly he did say that night and what in the Telegraph article he denies that he said. Anyway, if we had cut the speed of HS2, we would have avoided not only having bat tunnels but spending huge amounts of money on compensatory habitat for the destruction of ancient woodlands.
Let us not be unclear about this: Catherine Howard and her colleagues are very knowledgeable, but they are clearly representative of the development sector. Although their views are worth considering, they are not the only experts in this field. I do not believe that the extreme picture of the nature conservation bodies that is being represented is true. Nature is dramatically in decline and the habitats regulations were invented to meet that issue, so let us consider the approach in the amendments calmly and with a lack of polarisation. If we do not, we will simply continue to trade off nature in the interests of growth, when we should in fact deliver both.
Earl Russell (LD)
My Lords, I will speak very briefly to this group of amendments to say, basically, that I agree with the noble Baroness, Lady Young. I thank her for her contribution.
I wholeheartedly recognise why both noble Lords have brought forward the amendments, the point that they are making about the energy transition and the fact that we need to get on and build this stuff. In doing that, however, there is a balance to be achieved. If we do not transition to clean energy, there will be an impact on the environment. Obviously, there are some cases where these things come into contact and conflict, so we need to find ways to manage them. It is absolutely vital that we transition. I agree with the noble Baroness, Lady Young, that we need to walk away from the polarised debates that are happening and to recognise that habitats are only one issue among a whole bunch of issues.
The bigger thing for me, weirdly, is the fact that the Bill could be doing more to help with infrastructure. There is a missed opportunity here, which is perhaps why there is talk of another Bill coming forward. I am interested to see how the Government will respond to the amendments. These are issues of balance, so painting all the problems as being about habitat regulations—and given the way that the noble Lords have painted their canvas—does not help the debate.
The Government have more to do to look at how we deliver infrastructure. I believe that that needs to be done—let us be honest—not at this time of night, with about four people in the Chamber who would rather be at home, but through a proper look. What I take away from the noble Lords’ amendments is that, with all these issues—getting to clean power, being a crowded island, managing habitat regulations and managing other projects—there is more to be done to consider other ways to help deliver the infrastructure that we all know we need, while balancing the facts that our nature is in decline and we are a small, crowded island. What we need to do is all work together in a spirit of co-operation to examine what are very technical and complicated problems. I thank the noble Lords for bringing their amendments, because they have resulted in important debates.
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.
“Nuclear power station development(1) Section 104 of the Planning Act 2008 (decisions in cases where national policy statement has effect) is amended as set out in subsections (2) to (4).(2) In subsection (2), insert at the beginning “Subject to subsection (3A)”.(3) In subsection (3), for “(4)” substitute “(3A)”.(4) After subsection (3) insert—“(3A) Subsection (2)(a) to (c) does not apply, and this subsection applies, in the case of an application for an order granting development consent for a nuclear-powered generating station with a proposed nameplate capacity of 500MW or higher, if and to the extent that the Secretary of State considers it is necessary and appropriate to disregard any provision of—(a) the Conservation of Habitats and Species Regulations 2017,(b) the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, or(c) any environmental delivery plan made under the Planning and Infrastructure Act 2025,to secure the provision of the generating station in an economic, efficient, proportionate and timely manner.”.(5) By the end of the period of six months beginning with the day on which this Act is passed, the Secretary of State must make regulations to amend the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 to provide for a bespoke regime for the environmental impact assessment of any proposal for an order granting development consent for a nuclear-powered generating station with a proposed nameplate capacity of 500MW or higher. (6) Regulations made pursuant to subsection (5) must make provision for—(a) a page limit for environmental statements, not exceeding 1,000 pages for the main body of the statement and a total of 4,000 pages for any appendices, and(b) any person or body consulted on an environmental impact assessment to respond to the consultation within 21 days.”Member’s explanatory statement
This clause makes special provision in relation to large-scale nuclear power station developments by allowing the Secretary of State, when determining an application for a Development Consent Order, to disregard regulations relating to environmental impact assessment, habitats regulations assessment, or any environmental delivery plan, if this is considered necessary for the delivery of the nuclear power station. It also requires the Secretary of State to bring forward regulations to put in place a more proportionate environmental impact assessment regime for proposed nuclear power station development.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, on behalf of my noble friend Lord Offord of Garvel, I shall speak to Amendment 346DG. I should say at the outset that I agree with much of the comments made by the noble Lords, Lord Ravensdale and Lord Hunt of Kings Heath, in the previous group. This probing amendment continues in a similar vein. It addresses the urgent need to accelerate the delivery of new nuclear power in all its forms in the UK. It is designed with a clear objective: to ensure that our planning system enables, rather than obstructs, the development of the energy infrastructure that this country so desperately needs.
British-built plants cost far more per kilowatt than those of our competitors—six times more than in South Korea. Both France and Finland deliver the same EPR design for far less per kilowatt, at 27% and 53% respectively. These costs are driven by many factors, including slow, resource-intensive consultations relating to planning and permitting, and an 80,000-page environmental impact assessment driving overspecification on environmental and safety grounds. We need the process to become much more efficient.
Amendment 346DG would allow the Secretary of State, when determining an application for a DCO, to disregard regulations relating to environmental impact assessment, habitats regulations assessment or any environmental delivery plan if it is considered necessary for the delivery of a nuclear power station. It also requires the Secretary of State to bring forward regulations to put in place a more proportionate environmental impact assessment regime for a proposed nuclear power station development. This would put an end to the practice of blocking or delaying vital national infrastructure on environmental grounds alone and ensure that we cannot be held hostage to a system that prizes paperwork over progress and process over power generation.
The need for energy security is no longer a theoretical debate. It is a strategic imperative. We are presiding over the highest offshore wind auction prices in a decade, demand for electricity is rising rapidly and the UK is still overly reliant on imported energy sources. The last nuclear power station to come online in this country was in 1995. Hinkley Point C, the only one under construction, is now set to become the most expensive power station in history, not because the technology is flawed—far from it—but because of bureaucracy. We have witnessed the absurdity of eight years of negotiations to install 288 underwater loudspeakers—the infamous fish disco—to deter a trawler’s worth of fish from swimming into the water intake system. This amendment would put an end to that: no more paperwork that chokes innovation and pushes up costs, but rather a more proportionate environmental impact assessment regime that will give a level playing field to the UK nuclear industry.
We must be clear: nuclear is safe, is low-carbon and has the smallest land footprint of any energy source. Dr John Constable of the Renewable Energy Foundation estimates that wind and solar require up to 3,000 times more land to produce the same amount of power as nuclear. This matters—as the noble Baroness, Lady Young of Old Scone, agrees. We are a small island. In some regions, solar farm applications already cover up to 8% of available land, and the Government’s plan will require even more. Their decision to scrap our 24 gigawatt nuclear target—
Baroness Bloomfield of Hinton Waldrist (Con)
I did not say overall; I said in some regions.
Baroness Taylor of Stevenage (Lab)
We have had figures bandied around about solar. The total figure covered at the moment is 0.1%, and the total figure for the energy plan, which goes up to 2030, is 0.8%.
Baroness Bloomfield of Hinton Waldrist (Con)
And I repeat: it is 8% in some regions—not in all regions, and not the overall figure for the United Kingdom land space.
The Secretary of State’s need for wind and solar seems to have blinded him to the mounting costs and spatial limitations they could impose. A 24/7 digital economy, data centres and artificial intelligence are not served by intermittent power. They need reliable baseload, and that means nuclear. France, Finland and Sweden—nations with some of the cheapest, cleanest electricity in Europe—all rely on nuclear. The truth is this: nuclear is not the problem; our system is. As we embrace more advanced nuclear technologies, we must try and fix it now in this Bill.
The current regulatory regime puts documentation above the national interest. It pretends that a legal checkbox exercise is the same as protecting the environment. It is not. By making it near impossible to build a handful of nuclear stations on tightly controlled sites, we are instead forcing ourselves to cover more of the countryside with wind turbines and solar panels. Of course, we all care deeply about the environment. Our national love of the countryside and of our natural heritage runs deep. But a planning system that blocks low-carbon, low-footprint, clean energy is self-defeating. It turns environmental regulation into a tool of environmental harm.
Cheap abundant nuclear is not a fantasy; it is our route to energy sovereignty, to lower bills and to powering a modern, prosperous Britain. If we are serious about delivering the infrastructure that will enable growth, attract investment, support heavy industry and safeguard our national interest, then we need to be bold enough to cut through the red tape that is holding us back. Britain stands on the cusp of a new industrial renaissance, but we cannot reach it with the planning system stuck in the past—particularly as we embrace the new, small and advanced nuclear technologies. These amendments are a crucial step towards a future that is energy secure.
Lord Blencathra (Con)
My Lords, I support my noble friend’s amendment and make a plea for a simplified environmental audit for small modular nuclear reactors. I have in my hand here the speech I delivered on 22 October 2015 in the Grand Committee, aiding and supporting my noble friend Viscount Ridley on small modular nuclear reactors. The debate was supported by everyone in that Committee.
The Environment Minister said that she was totally in support of small modular nuclear reactors and that the technology was coming along rapidly and had to be followed through. We were then told that DECC, the Department for Environment and Climate Change, was carrying out a technical study which would inform the development of small modular nuclear reactors, which would conclude in 2016.
What has happened since then? Absolutely nothing—until in June this year the Government gave Rolls-Royce the go-ahead. Rolls-Royce was gagging at the bit in 2015 to crack on with this. I am afraid the last Conservative Government dithered on small modular nuclear reactors, just as Tony Blair's Government dithered on building Hinkley Point, which was initially costed at €3.3 billion. Then it went to £5 billion, £10 billion, £18 billion and £24 billion. I do not know what it is now—£30 billion or £40 billion.
Small modular nuclear reactors are clean energy. They can be positioned around the country, avoiding the need for huge cabling and pylons. As I say, Rolls-Royce was gagging at the bit and has now got approval to go ahead. Rolls-Royce has been building small modular nuclear reactors for 70 years, perfectly safely. They are in nuclear submarines. Of course, there is a difference between the nuclear engine one has in a submarine and the land-based modular nuclear reactor. But the science is not worlds apart. It is like a car company able to build a petrol engine, then told to build a diesel engine. Yes, some of the components are different and the construction is different, but the concept is the same. It is not rocket science.
I was concerned to read the other day that the wonderful visit of President Trump may involve a deal to get American small modular nuclear reactors. Well, I say to the Government, as we have got Rolls-Royce able to make these things and ready to crack on with them, the people of this country will not understand if we get ones dumped from Westinghouse or GE Hitachi from the United States. At the moment, British industry has a head start. Let us make sure we keep that head start by not putting in excessive regulation—which the Americans might not be required to have—nor planning applications which could take years and years to put a small, safe, modular nuclear reactor outside some of our cities.
That is why we need a simplified environmental audit plan for the positioning of our modular nuclear reactors and then we can crack on and get the cheap, clean power we need. The wind farms are not overexpensive, but the government subsidy is now ridiculously high. No wonder everyone wants to build wind farms—it is money for old rope, considering the subsidy the Government give them. We will not need as many of those, and we will not need pylons all over the countryside. I urge the Government to consider not just my noble friend’s amendment but the possibility of a simplified system for small modular nuclear reactors.
Lord Hunt of Kings Heath (Lab)
My Lords, tempting as it is to have a large-scale debate about nuclear energy, I do not think that noble Lords will want that. I broadly understand where the noble Baroness is coming from, and I am sympathetic to the thrust of what she is saying. However, I say to her and to the noble Lord, Lord Blencathra, that nuclear is part of the package. It is the essential baseload. We are going to be very reliant on wind and sun, and the whole thing has to be seen together.
We have this huge potential now. Hinkley Point C is making real progress. A final investment decision has been reached for Sizewell C. The noble Lord, Lord Blencathra, is right about the importance of the appraisal that GBN has undertaken, and government support for Rolls-Royce, and the announcement this week of the agreement with the US, which is twofold. The first point is regulatory alignment, which means, rather like in the pharmaceutical sector, that if one of the major regulators in the US, the UK, or Europe signs off a particular medicine, there is often mutual recognition. Clearly, this is important in meeting this point about reducing the amount of unnecessary bureaucracy in relation to regulation in future. The second point is on the announcement by a number of US companies, particularly from the west coast, who wish to invest in AI and data centres in the UK aligned to advanced modular reactors, which is fantastic news.
On the point made by the noble Lord, Lord Blencathra, I am sure Rolls-Royce is going to be in a very good position, but it has to be open to companies to invite other countries’ reactors as well. You do not want to put all your eggs in one basket in any case. The question then comes back to the issues we have been talking about recently as to whether the regulatory system we have collectively is going to be up to meeting this challenge. I commend a report published yesterday by Britain Remade, whose conference I happened to attend, which caused such offence to my noble friend. It is a very good report about the history of nuclear power development in this country. We had the lead once upon a time. We foolishly threw it away. We have a great chance to get back in at a substantive level, but at the moment it simply costs too much. There are various reasons: there is overspecification—we have heard that before—and there is slow resource-intensive consultation, planning and permitting. We have heard about the issues around some of the environmental protections, and there are various other reasons as well.
I wanted to ask my noble friend this. She knows that there is a Nuclear Regulatory Taskforce. It was set up under the auspices of the Prime Minister and the Chancellor. It gave an interim report in the summer. It is going to come back very soon with a substantive report, but the interim report spoke of,
“fundamental concerns about how regulation operates in practice, with the most prominent being that the system is perceived to be unnecessarily slow, inefficient, and costly”.
On the assumption that this report comes out within the next few weeks, will it be possible to use this Bill on Report as a way of trying to deal with some of the regulatory hurdles? I understand that my noble friend probably cannot answer that, first because the Government have not received the report, and secondly because they will have to consider how to do it, but I just express the hope that we might be able to use this Bill as a vehicle.
Lord Ravensdale (CB)
Very briefly, I follow on from the point of the noble Lord, Lord Hunt of Kings Heath. I raised the point he just made in a question a week or so back. That is a really important point: to try and join the dots between the work ongoing with the regulatory task force and this Bill, because it is a prime opportunity to make the legislative changes that are required.
I certainly support the intent of the amendments that the noble Baroness put forward. To go back to the announcement on Monday, we are going to need nuclear in many more locations across the UK than the traditional nuclear sites. I chair an organisation called Midlands Nuclear, where we have been undertaking a siting study for where we can locate nuclear across the region in many non-traditional sites—for example, old coal-fired sites and gas sites. That is going to require a new approach to planning: how we take all these reactors forward, and the sheer number of reactors that were talked about in Monday’s announcement. I temper that by saying that, of course, we are going to need energy of all forms to get to net zero: more wind, solar, nuclear and gas storage. I highlighted some of the issues with wind in debate on the previous group of amendments. We need to think about how we do this more broadly in the planning system.
Earl Russell (LD)
My Lords, I will very briefly respond on this amendment. I thank the noble Baroness, Lady Bloomfield, for introducing it on behalf of the noble Lord, Lord Offord of Garvel. To be honest, we are unable to support this amendment for various reasons. I understand that is a probing amendment, but it does not come across as a fully figured out or good way of doing things.
I fully take the point that other noble Lords have made about the announcements today on the back of Trump’s visit about small modular nuclear reactors, which this amendment is about, in terms of their importance for the economy. Separately, I have tabled an amendment to this Bill about the need for energy efficiency and for small modular reactors. It is important that, while we grow the economy, we make sure that the new things that we are building are actually energy efficient and fit for purpose. We cannot just keep having new power-hungry technology and expect to get to clean power at the same time. We cannot let the AI beast get out of control.
First, just to respond to this amendment, I know that it is probing, but the key thing here is that the Government have not asked for any of these powers. Indeed, they have just recently updated a lot of their nuclear policies. We have had an update to EN1 and to EN7. At no point during that time have the Government requested any of the sweeping powers set out here.
The amendment proposes that the Secretary of State may, if “this is considered necessary” and appropriate, disregard the Conservation of Habitats and Species Regulations 2017 and the Infrastructure Planning (Environment Impact Assessment) Regulations 2017. That wording in itself is just a carte blanche for the Minister to do whatever they want whenever they want. It is not good wording. Moreover, the amendment slashes the page limits for environmental impact assessments to 1,000 pages. I fully get that some of these documents are too long and that that can delay things, but 1,000 pages seems an arbitrary figure: 1,001 is not acceptable, but 999 pages is. It cuts the consultation period to 21 days. Again, it strikes me that these are vaguely plucked out of the air and are not properly thought through.
This could undermine democratic accountability, and people being able to consult on these things. It could incur significant legal risk, as we have obligations under retained EU law, international treaties and all sorts of things. It is also a risk as we are transitioning to a completely new way of doing nuclear energy—dispersing it, having it run by companies, and, inevitably, its being situated closer to communities. It is important for delivering this transition that we take communities with us and, as we deploy a new technology, that this is done in a way that creates confidence and does not undermine the very thing that we want to do. As we start to roll this out, it is more important than at any other point that we do this properly and appropriately. My worry is that rushing to sweeping powers like this could do the exact opposite of what the amendment intends, and undermine confidence in this part of our energy transition, so I am not able to support the amendment.
I have raised this in the House before: whenever we have this conversation about nuclear, it is always put in opposition to solar, and solar has taken over the world. Actually, this week we have had the Treasury itself saying that the long-term geological store for our historical legacy of nuclear waste has gone on to the red list and is not deliverable. Nuclear energy comes with different issues and benefits, but also has big, non-associated costs that are not always put forward. It has a long-term historical legacy of highly radioactive waste that needs to be dealt with. We recognise that nuclear is part of the mix but, coming back to what I said on the previous amendment, if the Government feel they need more regulation in this space—they may well do—we will listen to that. However, that needs to be done in the round and, as we transition to a new form of nuclear energy, this stuff needs to be done very carefully indeed.
Lord Blencathra (Con)
I wanted to speak briefly on the point that the noble Lord, Lord Hunt of Kings Heath, made on regulatory alignment. I like regulatory alignment in principle, provided it meets the right level of agreed regulation. I am fairly certain with everything I read that British regulators are perhaps over-nitpicking and over-fussy here, and are causing delays at Hinkley Point by double- and triple-checking the welding. I am also fairly certain with what I read that American regulators are—I would not say sloppy—much more relaxed.
If regulatory alignment comes about from British regulation experts talking to American regulation experts and reaching agreement, I can live with that. What I could not live with is a political agreement on regulatory alignment. I admire the way that President Trump goes around the world fighting for American interests, and stuffs everybody else provided that American interests come first. My worry here would be that, at some point, he may offer a deal saying, “Okay, Britain, you want no tariffs on steel and whisky? I can go along with that, provided you accept American terms on regulatory alignment for our nuclear reactors”. It is the political deal that worries me, not any regulatory alignment brought about by experts. I do not expect the Minister to be able to answer that or comment on it; I merely flag it. I see the noble Lord, Lord Hunt of Kings Heath, nodding, and I am glad that we agree on this point.
Baroness Taylor of Stevenage (Lab)
My Lords, I will not get drawn into the geopolitical issues of international trade on the planning Bill, but I will address the points in the amendment.
The Government shares the ambition of the noble Lord, Lord Offord, and the noble Baroness, Lady Bloomfield, who moved his amendment, to make nuclear development faster and more cost effective, and the plea of the noble Lord, Lord Blencathra, for SMRs. My noble friend Lady Hayman mentioned AMRs as well, which are important. Quite simply, we cannot grow the economy in the way that we want to without rapidly tackling the clean energy issue on all fronts, including nuclear. That is about not only clean energy but providing us with energy security and lower energy prices, which will help not only businesses in our country but households as well. It is important that we get on with that.
I fear that the solutions proposed in this amendment—I appreciate that it is a probing amendment—would potentially invite problems of their own, and risk undoing the growth we have seen in public support for new nuclear. I look first at allowing the Secretary of State to disregard environmental impact assessment requirements, where doing so would
“secure the provision of the generating station in an economic, efficient, proportionate and timely manner”.
We should remember that environmental assessments include not just impacts on wildlife but also take account of the impact on communities—noise, air quality, human health, and so on.
An application for a new nuclear power station will include proposals for mitigation measures designed to limit or remove any significant adverse environmental effects that it would have. This amendment could remove any requirements for those mitigation measures, which simply means that the significant impacts would not be managed. Like the noble Lord, we recognise that environmental assessment is in need of reform, which is why we are already carefully considering how to bring forward environmental outcome reports that will allow us to ensure that EIA is proportionate and to reduce the risk that these assessments are used to unduly delay development coming forward.
Allowing the Secretary of State to exempt nuclear power station projects both from the habs regulations and from any requirement to pay into an EDP could leave our most important protected sites and species at risk of irreparable harm. Simply providing for these regulations to be disregarded is probably the wrong approach and risks removing the need for even the most common-sense consideration of environmental impacts and actions to address these.
As I hope I have already set out to noble Lords in these debates, the nature restoration fund will allow developers to discharge their environmental obligations around protected sites and species more quickly and with greater impact, accelerating the delivery of infrastructure at the same time as improving the environment.
The planning regime must support new nuclear, so we have introduced a transformative draft national policy statement on nuclear energy. It is important, therefore, that both this policy statement and the overarching national policy statement for energy are considered when deciding applications for new nuclear power stations. This amendment would remove the centrality of these national policy statements in determining applications for those power stations, which would only slow down and confuse the decision-making process. The habitats regulations must be applied sensibly, which is why the overarching national policy statement for energy has already introduced the concept of critical national priority projects. This creates a presumption that the importance of low-carbon energy infrastructure is such that it is capable of amounting to imperative reasons for overriding public interest. We recognise that we need to go further and the nuclear regulatory framework—my noble friend Lord Hunt, referred to it, I believe—must avoid increasing costs where possible. We have therefore launched the Nuclear Regulatory Taskforce, which will report later this year.
The Government remain firmly of the view that, when it comes to development and the environment, we can do better than the status quo, which too often sees both infrastructure delivery and nature recovery stall. I hope that, with this explanation, the noble Baroness, Lady Bloomfield, on behalf of the noble Lord, Lord Offord of Garvel, will be able to withdraw the amendment.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank the Minister for her considered and rather encouraging response, and indeed all noble Lords for their thoughtful contributions to this debate. I particularly thank the noble Lord, Lord Hunt of Kings Heath, for reminding the Committee about the exciting progress towards regulatory alignment between the US and the UK on nuclear matters. I join him in encouraging the Government to investigate bringing forward helpful legislative changes on Report in the light of recent research. For now, I beg leave to withdraw this amendment.
“General duties when exercising functions relating to EDPs(1) This section applies where—(a) Natural England or the Secretary of State is exercising any functions in relation to the preparation, amendment or revocation of an EDP, or(b) the Secretary of State is considering whether to take, or is taking, remedial action under section (Remedial action by Secretary of State where EDP ends or is revoked).(2) Natural England or the Secretary of State must take account of the best available scientific evidence.(3) Natural England or the Secretary of State must have regard to—(a) the development plan for the development area,(b) the current environmental improvement plan,(c) any Environment Act strategies, and(d) any other strategies or plans,so far as Natural England or the Secretary of State considers them to be relevant.(4) Where an EDP specifies as the development area an area that includes waters adjacent to England (see section 54(2)(b)), Natural England or the Secretary of State must also have regard to—(a) any marine plan,(b) the marine policy statement, and(c) the UK marine strategy,so far as Natural England or the Secretary of State considers them to be relevant.(5) Where an EDP includes as an identified environmental feature a protected feature of a protected site, Natural England or the Secretary of State must have regard to any conservation objectives of the site that relate to the feature, so far as Natural England or the Secretary of State considers them to be relevant.(6) Where an EDP includes as an identified environmental feature a protected species, Natural England or the Secretary of State must have regard to the need to achieve favourable conservation status for that species in their natural range.(7) Subsection (8) applies where—(a) an EDP includes as an identified environmental feature a protected feature of a protected site, and(b) the EDP includes conservation measures of the type mentioned in section 55(4) (network conservation measures).(8) Natural England or the Secretary of State must have regard to the need to protect the overall coherence of each relevant site network of which the protected site forms a part, so far as it relates to the protected feature.(9) The Secretary of State may by regulations make provision about other things that must be done by Natural England when exercising functions in relation to the preparation, amendment or revocation of an EDP.(10) In this section—“current environmental improvement plan” has the same meaning as in Part 1 of the Environment Act 2021 (see section 8 of that Act);“development plan” has the same meaning as in section 38 of the Planning and Compulsory Purchase Act 2004;“Environment Act strategy” means a strategy prepared under any of the following provisions of the Environment Act 2021— (a) section 104 (local nature recovery strategies);(b) section 109 (species conservation strategies);(c) section 110 (protected site strategies);“marine plan” has the meaning given in section 51(3) of the Marine and Coastal Access Act 2009;“marine policy statement” has the same meaning as in the Marine and Coastal Access Act 2009 (see section 44 of that Act);“relevant site network” means—(a) the national site network within the meaning of the Habitats Regulations 2017 (see regulation 3 of those Regulations);(b) the national Ramsar site series within the meaning of the Habitats Regulations 2017 (see regulation 3 of those Regulations);(c) the network referred to in section 123(2) of the Marine and Coastal Access Act 2009 (marine protected area network).“the UK marine strategy” means the strategy developed under the Marine Strategy Regulations 2010 (S.I. 2010/1627).”Member’s explanatory statement
Clause 58 sets out matters to which Natural England must have regard when preparing an EDP. This amendment would extend that duty to the exercise of other functions relating to an EDP (e.g. amendment and revocation) by both Natural England and the Secretary of State. It would also add in additional matters to which Natural England and the Secretary of State must have regard when exercising functions.
(a) after the definition of “marine area” insert—““the national Ramsar site series” means all the wetlands in the United Kingdom that have been designated under paragraph 1 of article 2 of the Ramsar Convention for inclusion in the list of wetlands of international importance referred to in that article;”;”Member’s explanatory statement
This amendment would be a drafting correction to insert a definition of “the national Ramsar site series” into the Habitats Regulations.
Member’s explanatory statement
This amendment, and another in the name of Baroness Young of Old Scone, would require the super-affirmative procedure for any regulations to amend to existing Acts or assimilated law under section 89(2).
Baroness Young of Old Scone (Lab)
My Lords, I shall speak briefly to Amendments 351A and 351B. As currently drafted, Clause 89(2) gives the Government pretty sweeping powers to amend any other Acts of Parliament or assimilated law that they consider appropriate for the purposes of implementing Part 3.
Amending primary legislation is a big step, and I think it should require the highest level of consideration in your Lordships’ House, which is the super-affirmative resolution procedure. That would mean that a draft would need to be considered by each House and could be amended before it was formally laid for passing in the House. I hope the Minister can agree to this process, considering the sweeping nature of the powers that the Government are intending to take. I beg to move.
Baroness Coffey (Con)
I strongly support what the noble Baroness, Lady Young of Old Scone, said. In fact, it would be preferable for Clause 89(2) to be removed from the Bill.
My amendment is about the Secretary of State. I have not had the chance to identify in Hansard precisely where Ministers spoke to that the other day and this morning. I just think it is fair. I do not think the Minister in any way misspoke the other day.
I do not want to do a long constitutional lecture. I should point out that right now I am very keen to monitor this legislation, but I am also keen to see the rest of the second half of Liverpool beating Atlético Madrid 2-1, which is the score now.
Back to the topic: constitutionally, any Secretary of State can undertake the role of any other Secretary of State. This is where aspects of this come into play. I have extensive experience of having many legal cases against me and other Secretaries of State when I was in government. There were certain legal cases where the sponsoring department was conceived to be the decision-making power. All I am trying to do with this amendment is to make it crystal clear that Part 3 applies to the Secretary of State for Defra. The Minister mentioned earlier that it will be, except in certain circumstances or whatever. This just avoids any difficulty in that regard.
For what it is worth, my sense is that the Ministry of Housing, Communities and Local Government is yet again blocking the commencement of other legislation, which is frustrating. Nevertheless, this is something I am happy to discuss and come back to on Report. I feel particularly strongly about it and would like it to be transparent in the Bill. If people suggest that portfolios and names change, there are existing procedures in legislation which, in effect, make the changes automatically. In that regard, I hope to move my amendments on Report.
Lord Blencathra (Con)
My Lords, I support my noble friend Lady Coffey on this small but important amendment, Amendment 356. It may seem a technical thing, but it goes to the heart of how this Bill and the EDP will operate. I retired from the board of Natural England in December last year. I have worked with Defra officials for the past seven years, and I know the strength of their working relationship with Natural England, so the Committee will forgive me if I speak for a little bit longer than my noble friend did in speaking to her amendment.
When I discovered on Monday that the Secretary of State to whom Natural England will report on EDPs will be for Housing, Communities and Local Government, I was appalled. I stand by my comments from Monday that no one in that department has any knowledge of biodiversity, wildlife and the countryside or can tell the difference between a bat and a butterfly.
I know that some of my noble friends dislike Natural England, and possibly Defra as well, but at least Defra understood the legal position and duties of Natural England. I ask my noble friends and Members opposite, and outside NGOs: do they seriously think that the Ministry of Housing, Communities and Local Government understands the operation of the countryside and biodiversity? I can tell them of the fight we and Defra had to get biodiversity net gain approved and past the objections of the department for housing and levelling-up, as it then was.
My main concern is that Natural England is an NDPB with complete operational independence in a large number of matters. There was a new perm sec a few years ago who initially thought that Natural England was an executive agency fully under the command of Defra, like the Rural Payments Agency and large parts of the Environment Agency. Natural England does get some ring-fenced funding, which is controlled by Defra; for example, the £50 million for peat restoration and funding, the King’s coastal path and a few other things. But most grant in aid is for the 250 legal obligations that Natural England has to perform each year. Many of these are boring and technical but they are the day job and have to be done, like responding to tens of thousands of requests from planning authorities on planning applications which may affect nature. I recall that the noble Lord, Lord Teverson, had an amendment in group 7, where it was said that if the Government give Natural England extra funding for EDPs, the Treasury will claw it back somewhere else, and the Natural England budget will be squeezed on some other vital areas.
Defra understands that Natural England is legally independent in its operations. Of course, the Secretary of State can issue instructions and take control in some areas but rarely does so. I cannot see any circumstances where Defra would order Natural England to prepare plans which could endanger or diminish an SSSI or protected landscape or any national nature reserve, but would the Ministry of Housing, Communities and Local Government show the same restraint?
I suspect that this MHCLG plan to take over control of nature was an Angela Rayner brainwave. I am sure that she and the department thought that Natural England and Defra had too cosy a relationship and Defra might not be trusted to drive through development plans, so Housing had to take charge. Defra and Natural England do not have a cosy relationship, but they have a very good working relationship, and each understands the roles and duties of the other.
One of the changes we made six years ago was to invite a very senior Defra official to attend board meetings. He had no say in our decision-making and no vote, but he heard our thinking, and when we asked him he could give a steer on government thinking. That was and is invaluable. He was the director-general of environment and is now the interim Permanent Secretary, the excellent David Hill; a quiet, unassuming modest man but with a superb brain and great intellect—and, of prime importance, he cares about the environment and biodiversity. The thought that Housing will be in the driving seat in directing Natural England on the preparation of EDPs fills me with dread, not just for the effects on farming and the countryside but for biodiversity as well.
I wonder if the NGOs realise that Housing will be the master here. I would love to hear from the RSPB, the Wildlife Trust, the National Trust, the Woodland Trust and others on whether they are comfortable with Natural England reporting to the housing department on the operation of EDPs.
Let us briefly look at the Ministers making the decision. I regret that the new Housing Secretary of State, Steve Reed, whom I rather liked at Defra, issued a statement last week called “Build, baby, build”, and said that he would unleash a blitz of measures in this planning Bill. That does not sound like there will be much care for the environment and biodiversity. I assume that he has got a President Trump MAGA hat to go with that Trump slogan; I would much prefer to hear Ed Miliband say, “Drill, baby, drill”. However, no matter how nice they may be, the other Ministers in that department—from Peckham, Birkenhead, Greenwich and Chester—have no country or biodiversity experience.
In Defra, the new Secretary of State and Agriculture Minister do not have any rural, countryside or biodiversity experience, no matter how nice and decent they may be. Emma Hardy is quite good, and Mary Creagh is very good and has a track record of shadowing Defra and the Environmental Audit Committee. But there is one Minister in Defra who really knows her stuff, has represented a large rural area and understands the countryside and biodiversity, and she is sitting opposite us on the Government Benches. She is our own lass, the noble Baroness, Lady Hayman of Ullock. I hope that this praise does not kill off any further career chances for her, but I know that everyone in the House supports exactly what I have said.
We face the situation with the Bill that the only civil servants and Ministers who know what should be in an EDP, if we have to go down that route, are in the government department being bypassed. I know that the Minister’s brief will say that Defra will have input and that it will work in partnership with the MHCLG, but everyone knows that, just as departments have input into the Treasury on their budgets, the Treasury dictates everything.
The other golden rule in government is that the department with the money rules the roost. The Defra budget last year was £4.6 billion. The MHCLG budget was £25 billion—five times greater. Make no mistake, if this amendment does not succeed then all the expertise of Defra and its Ministers will be sidelined, the countryside will be ravaged and biodiversity will be sabotaged, as “build, baby, build” is unleashed by a department which simply does not understand. I do hope that my noble friend will return to this vital matter on Report.
Baroness Coffey (Con)
My Lords, I forgot a sentence in my contribution. I should have said that what we were informed of the other day completely explains how the Bill has been drafted. If it had been the Secretary of State for Defra definitively doing this, a lot of the clauses would not be needed, with the exception of compulsory purchase powers. I tabled this amendment in anticipation of raising the issue at this point.
Baroness Pinnock (LD)
My Lords, these Benches totally agree with the two amendments tabled by the noble Baroness, Lady Young of Old Scone, because the depth and range of the changes encompassed in this Bill are significant and substantial. Throughout the Bill are references to the regulatory changes that will be made in secondary legislation; therefore, it is vital to retain understanding by the communities that are going to be affected and to help them with transparency on what the Government are doing to keep them on side rather than in complete opposition, at every turn. If, as the noble Baroness, Lady Young, proposed, there is super-affirmative secondary legislation, the details of those changes could be properly scrutinised in draft form and then through the affirmative process. That seems an important route to take.
I am grateful to the noble Baroness for raising this and hope that the Government Benches, for once in this Bill, as we approach the end, will give us the affirmative nod.
Lord Roborough (Con)
My Lords, we support these amendments tabled by the noble Baroness, Lady Young of Old Scone, and my noble friend Lady Coffey. I will start with Amendment 356 in the name of my noble friend.
I am sure it was not lost on the Minister that, when she informed your Lordships that the Secretary of State for MHCLG would be the directing and reporting SoS for Natural England on the nature restoration funds and EDPs, there was a huge collective intake of breath. What a sigh of relief it was this morning to hear that this had been reconsidered. I would be most grateful if the Minister could indicate the circumstances under which it may not be the SoS for Defra, as she mentioned earlier.
The amendments in the name of the noble Baroness, Lady Young, Amendments 351A and 351B, seek to ensure that the super-affirmative procedure is adhered to for any regulations to amend existing acts or assimilated law under Section 89(2). A super-affirmative procedure would result in both Houses having the opportunity to comment on proposals put forward by the Minister and to recommend refinements before amendments are tabled in their final form. I am sure that all noble Lords are of the firm belief that scrutiny of legislation and delegated powers are important principles and a staple of any democratic system. I therefore very much welcome the spirit of the amendments and look forward to the Government’s response.
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.
Baroness Young of Old Scone (Lab)
My Lords, I thank the Minister for her assurances about consequential or technical amendments being the only things that are envisaged by this provision, and that the super-affirmative process was more appropriate for important and complex changes. That is fine when government is in the hands of reasonable people, but, increasingly, we have to anticipate that a future Government might not be as reasonable. This provision, as currently drafted, would leave open a door for substantial changes to any primary legislation that could be remotely associated with the Bill. I am not seeing reds under the beds or whatever it is, but I hope the Minister might consider that we need to start thinking about proofing some of our legislation against lunacy. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“Pre-consolidation amendments of planning legislation(1) The Secretary of State may by regulations make such amendments and modifications of the Acts relating to planning as in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with, the consolidation of the whole or a substantial part of the Acts relating to planning.(2) The Acts relating to planning are—(a) the Commons Act 1899;(b) the Public Health Act 1936;(c) the Agricultural Act 1947;(d) the Historic Buildings and Ancient Monuments Act 1953;(e) the Land Compensation Act 1961;(f) Part 4 of the Public Health Act 1961;(g) the Compulsory Purchase Act 1965;(h) the Forestry Act 1967;(i) the Post Office Act 1969;(j) the Land Compensation Act 1973;(k) the Inner Urban Areas Act 1978;(l) the Ancient Monuments and Archaeological Areas Act 1979;(m) Parts 9 to 18 of the Local Government, Planning and Land Act 1980;(n) the Highways Act 1980;(o) the New Towns Act 1981;(p) the Acquisition of Land Act 1981;(q) Part 2 of the Civil Aviation Act 1982; (r) the Building Act 1984;(s) Part 5 of the Airports Act 1986;(t) the Town and Country Planning Act 1990;(u) the Planning (Listed Buildings and Conservation Areas) Act 1990;(v) the Planning (Hazardous Substances) Act 1990;(w) the Planning (Consequential Provisions) Act 1990;(x) Parts 1, 3 and 5 of the Planning and Compensation Act 1991;(y) the Transport and Works Act 1992;(z) sections 67 to 69 and 96 of, and Schedules 13 and 14 to, the Environment Act 1995(z1) Part 7 of the Greater London Authority Act 1999;(z2) the Countryside and Rights of Way Act 2000;(z3) sections 118 and 397 of, and Schedule 4 to, the Communications Act 2003;(z4) the Planning and Compulsory Purchase Act 2004;(z5) the Natural Environment and Rural Communities Act 2006;(z6) the Commons Act 2006;(z7) the Housing and Regeneration Act 2008;(z8) the Planning Act 2008;(z9) Parts 6 and 9, and sections 202 to 205, of the Localism Act 2011;(z10) the Mobile Homes Act 2013;(z11) the Infrastructure Act 2015;(z12) Parts 6 to 8 of the Housing and Planning Act 2016;(z13) the Neighbourhood Planning Act 2017;(z14) the Environment Act 2021;(z15) the Building Safety Act 2022;(z16) the Historic Environment (Wales) Act 2023;(z17) Parts 3 to 11 of the Levelling-up and Regeneration Act 2023;(z18) this Act;(z19) any other provision of an Act relating to planning, whenever passed.(3) For the purposes of this section, “amend” includes repeal (and similar terms are to be read accordingly).(4) Regulations made under this section do not come into force unless an Act is passed consolidating the whole or a substantial part of the Acts relating to planning.(5) If such an Act is passed, any regulations made under this section come into force immediately before the Act comes into force.(6) Regulations under this section are to be made by statutory instrument.(7) A statutory instrument containing (whether alone or with other provision) regulations under this section may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.”Member’s explanatory statement
This new clause enables pre-consolidation amendments to be made to planning legislation, in anticipation of a future Consolidation Bill. It is intended to probe the desirability and feasibility of consolidation of planning legislation.
Lord Hunt of Kings Heath (Lab)
My Lords, we are nearly at the finish. All I want to do here is make a plea to my noble friends the Ministers to consider the benefit of consolidated Acts in relation to planning law. As I have discovered in my imperfect dip into planning law for the Bill, it is very complex; it is a labyrinth of Acts, and they overlap and cross-refer. They have been amended by layers of primary and secondary legislation, and the framework has become very complex. The Bill is all about growth, and I have every sympathy for people that have to operate in the field.
As Ministers, we all acknowledge that consolidated legislation is a good thing, and then we all fail to bring any consolidated legislation. I am well aware that it is my second mea culpa of the week. If we want to sort out our planning system, consolidated legislation would be a very good thing to do. It does not really involve much parliamentary time. It involves the department in work and parliamentary counsel, but the Law Commission is usually able to help. To achieve internal consistency, you need to have pre-consolidation amendments, and that is what my amendment would also allow for.
My noble friends have shown huge stamina in getting through Committee. They have responded sympathetically to many of the constructive amendments put forward. I just hope they might be able to say that they will consider this. I beg to move.
Baroness Coffey (Con)
My Lords, I am concerned about this amendment, in particular subsection (3) of the proposed new clause, because it talks about repealing primary legislation. I understand what the noble Lord, Lord Hunt, is getting at in trying to make legislation straightforward. That is why we have all these schedules to legislation nowadays, to try to bring that about. I fear, and I have heard on the grapevine, that the noble Lord has been advised by somebody who is now advising somebody very important in the Government and who has also made subsequent comments about how nature is getting in the way of development. While I am conscious of the positive intentions that the noble Lord seeks to achieve through the amendment, I am just flagging my concern.
Baroness Scott of Bybrook (Con)
My Lords, I am grateful to the noble Lord, Lord Hunt of Kings Heath, for bringing forward Amendment 356A for the consideration of the Committee today. The proposed new clause would allow for pre-consolidation amendments to be made to planning legislation in anticipation of a full future consolidation Bill. Its purpose, as I understand it, is to probe the desirability and feasibility of consolidating the extensive and at times unwieldy body of planning law. The noble Lord is absolutely right to raise the matter.
It comes at a timely moment. We hear that, hot on the heels of the first planning Bill, the Government may now be contemplating a second. As we have said from this Dispatch Box on a number of occasions, if the Government had proceeded to commence either in full or even in part the schedules and clauses already contained within the Levelling-up and Regeneration Act, we might well have avoided the need for yet another Bill in the first place.
That brings me to the specific questions for the Minister. Can she confirm whether there is any truth in the strong rumours circulating that a new planning Bill is indeed on its way? If so, will such a Bill aim to consolidate the many changes that have been made right across the breadth of planning law in recent years? Do the Government accept that consolidation is both needed and desirable, not least to provide clarity and certainty to practitioners, local authorities and communities alike? Finally, can the Minister tell us whether the Government have considered what such a consolidation process might look like and under what timescale it might realistically be delivered? I look forward to the Minister’s reply.
Baroness Taylor of Stevenage (Lab)
My Lords, I thank my noble friend Lord Hunt for Amendment 356A and for highlighting the merits of consolidating our planning legislation. As someone who has been on the sticky end of it for a number of years, I can absolutely see his point.
My noble friend is not the first to consider this. Indeed, the existing legislative framework provides the Government with sufficient powers to consolidate the planning legislation at an appropriate time. Specifically, as the noble Baroness, Lady Scott, said, Section 132 of the Levelling-up and Regeneration Act provides the Secretary of State with broad and flexible powers to make regulations that amend, repeal or otherwise modify a wide range of planning-related statutes.
While we have no immediate plans to consolidate planning legislation in England, we will keep this under review, as we recognise that consolidating planning legislation could offer some benefits. Since the enactment of the Town and Country Planning Act 1990, the legislative framework has undergone numerous amendments, and consolidation may help to streamline and simplify the system. However, a comprehensive consolidation needs to be weighed against the risks of uncertainty and disruption, particularly at a time when the Government are prioritising targeted planning reform to drive economic growth.
Any move towards consolidation would also require substantial resources, so we would need to be confident that it has clear benefits. At this stage, we believe that targeted reform is the best way forward, but we are live to the possibilities that consolidation offers. I hope that my noble friend and other Peers with an interest in planning will continue to work with us. I therefore hope that my noble friend will feel able to withdraw his amendment.
Lord Hunt of Kings Heath (Lab)
I am very grateful to my noble friend. I say to the noble Baroness, Lady Coffey, first, that the person to whom she referred has not in fact advised me on this amendment. Secondly, she should not fear the amendment; I realise that it is a Henry VIII provision, but all it would allow us to do is have pre-consolidation amendments. We could not use it, for instance, to create a special pathway for nuclear developments in the way that the noble Baroness, Lady Bloomfield, suggested. I hope I can reassure her on that.
I am grateful to my noble friend the Minister. Clearly, she and her department recognise that, for people in the field, this can be very complex, so everything we can do to make it as straightforward as possible is to be desired. Having said that, I beg leave to withdraw my amendment.
“(x) section 46(1), (4) and (5) come into force at the end of the period of two months beginning with the day on which this Act is passed;(xa) section 46(2) and (3) come into force—(i) in relation to applications made to the Secretary of State, on the day on which the first relevant regulations made by the Secretary of State come into force;(ii) in relation to applications made to the Scottish Ministers, on the day on which the first relevant regulations made by the Scottish Ministers come into force;(iii) in relation to applications made to the Welsh Ministers, on the day on which the first relevant regulations made by the Welsh Ministers come into force;and in this paragraph “relevant regulations” means regulations under paragraph 9A of Schedule 3 to the Harbours Act 1964 (inserted by section 46(4));”Member’s explanatory statement
This amendment would adjust the commencement of clause 46 so that the repeal of existing fee-charging powers takes effect in each of England, Scotland and Wales only when new fees regulations come into force in the area concerned.
Baroness Neville-Rolfe
Member’s explanatory statement
This probing amendment, connected with another in the name of Baroness Neville-Rolfe, seeks to prevent the commencement of provision on EDPs until guidance has been published setting out how any regulatory burdens on smaller developers and construction firms can be minimised.
Baroness Neville-Rolfe (Con)
My Lords, I am honoured to speak, in the last group, to my Amendments 361A and 361B, on encouraging SME builders, and to Amendments 363 and 364, on mechanisms for encouraging the speedy rollout of planning reform. Amendment 275A, which I was unable to speak to this morning, belongs in a family with the first two amendments, and I am grateful to the noble Baroness, Lady Hayman of Ullock, for her comments in my absence. I am especially keen to improve the position of SMEs; it is a theme of many of my amendments to many Bills before the House of Lords.
My SME amendments follow a constructive discussion we had at one of the two Ministers’ helpful briefing sessions. My concern is that the new EDPs under Part 3 will further damage the position of smaller developers and construction firms, and I would like to see guidance provided to Natural England to head off that risk. I am afraid that neither the requirement to consider the viability of development in making regulations nor the tiering of the nature restoration levy by type of development quite does the trick.
We know from the trouble over nutrient neutrality just how religiously Natural England follows rules designed for nature protection at the expense of anything else. We need balance in relation to how it treats small developers and the smaller sites that developers need. The truth is that SMEs contribute so much to local communities and local employment and can do so much more in construction.
Baroness Pinnock (LD)
My Lords, SME builders play a very important role in the housebuilding sector of the country because they are able to build on small sites that often need to be redeveloped or are in villages or small townships. We need to encourage SME builders, because they add variety to the range of housebuilders that we rely on in this country. It does seem that, throughout this Bill, there has been too much emphasis on the major house developers—on the basis, I guess, that they are the only source of the very large numbers of housing units that the country requires.
I know that throughout the Bill the Government have attempted to support SMEs, although I am not sure that that has been sufficient. The noble Baroness, Lady Neville-Rolfe, has important points to make about SMEs. As always in planning, it is the balance—between encouraging SMEs, maybe at the expense of some of the regulations regarding environment, and relying too heavily on the major housebuilders, which will be able to cope with the growing need for consideration of environmental responsibilities. I look forward to what the Government are going to say about this; encouraging SME builders is really important.
Baroness Scott of Bybrook (Con)
My Lords, we are nearly there. I thank all noble Lords from across the House for their contributions to the Bill. Over long and often intricate debates, sometimes stretching well into the night, your Lordships have engaged with candour, with insight and with seriousness befitting the weight of these issues. The cross-party spirit of scrutiny and the diligence shown in Committee has, I believe, genuinely strengthened our deliberations.
Amendment 361, tabled by the noble Earl, Lord Caithness, is sound and reasonable. I shall not detain the Committee with another extended rehearsal of why Part 3 is, in our view, both damaging and unnecessary. But let me be clear: despite the Government’s determination to plough ahead with this part of the Bill, the opposition to it will only crystallise further on Report. Part 3 needs to go. At the very least, there must be an independent oversight of its administration. Without that, the concerns raised in Committee will only deepen.
The two thoughtful amendments tabled by my noble friend Lady Neville-Rolfe are practical and considered proposals that go right to the heart of the issues we have debated throughout Committee. Amendment 363 would ensure that the Secretary of State updates all national policy statements before the Act can be commenced. This is vital; out-of-date national policy statements do not provide the clarity or certainty required for developers, planners or communities.
Meanwhile, Amendment 364 would ensure that the Secretary of State publishes an analysis of how each section of the Bill will affect the speed of the planning process and construction before any provisions are commenced. If the central purpose of the Bill is, as Ministers insist, to accelerate planning and speed up delivery, it is only fair to ask how it will achieve that objective in practice. Will it, for example, make any real progress towards the former Deputy Prime Minister’s target of 1.5 million new homes, a promise which, under this Government, looks ever more distant as housebuilding rates continue to decline?
I conclude by returning to the point that I made at the start of Committee. This Bill does not go far enough. It makes adjustments to processes, to roles, to fees and to training. But it leaves untouched the fundamental framework of planning—the very framework that needs serious, bold reform if we are to unlock the scale of housebuilding that this country so urgently requires. We now hear rumours of a second planning Bill to come. If that is true, what your Lordships’ House has been asked to consider is not reform but merely a prelude.
The Government have missed an opportunity with this Bill. They had the chance to set a clear vision for the planning system that delivers for communities, supports growth and tackles the housing crisis head on. Instead, they have brought forward a piecemeal piece of legislation more about tinkering at the edges than about grasping the real challenge. The Government have chosen to use up their remaining political capital on Part 3 rather than building more homes, and the Minister will soon realise that she and her department have wasted their energy on this Bill.
I repeat my thanks to all the staff in the House: the doorkeepers, the technical staff and Hansard have all had to work very hard on nights when we have sat late on this Bill, and I thank them very much for that.
Baroness Taylor of Stevenage (Lab)
My Lords, before I respond to the amendment, I thank all noble Lords who have taken part in the Committee debates and the meetings we have held around the Committee stage of the Bill. We have apparently spent 60 hours in the Chamber debating the Bill and covered 650 amendments. Noble Lords’ knowledge and experience have helped us to shape this important new approach to planning, growth and the environment, which has been especially valuable.
I thank the Front-Bench spokespeople who have shown great stamina and fortitude, which has been really greatly appreciated. I also thank all the outside bodies who have contributed to our debates in the House. I especially thank all the officials who have worked on the Bill. The processes in the House of Lords mean that our officials often have to work at very short notice on putting together papers for Front-Benchers. I also thank the staff of the House, who have worked often very long hours on the Bill.
I also give my personal thanks to my fellow Front-Bench government spokespeople, the noble Lords, Lord Khan and Lord Wilson, and the noble Baroness, Lady Hayman, who have supported me so ably on the Front Bench during Committee. I am extremely grateful to them for their support.
This final group of amendments tabled by the noble Baroness, Lady Neville-Rolfe, relates to the commencement of the legislation. I thank the noble Baroness for her support and encouragement of the growth agenda that the Bill is aimed at promoting. As we have made clear throughout Committee, our Planning and Infrastructure Bill will play a key role in unlocking economic growth, and we must progress to implementation as swiftly as possible to start reaping the benefits of these measures and getting shovels in the ground—including shovels operated by SME builders. My noble friend Lord Livermore yesterday quoted the fact that this Bill has already been assessed to be making a great contribution to the economic growth we all want to see.
On Amendment 363, while I commend the intent of bring all national policy statements up to date, we must resist this amendment because the clauses in the Bill already address this through the introduction of a requirement for all NPSs to be reviewed and updated at least every five years. These clauses include transitional requirements, the most stringent of which require the NPSs which were designated more than five years before the date when the clauses came into force and have not been amended, to be brought up to date within a two-year period. Delaying the commencement of the rest of the Act until such a time as all NPSs have been updated is therefore unreasonable and would have a detrimental impact on the objectives of the Bill, stalling delivery and growth in our country.
Amendment 253 also seeks to have all remaining sections of the Bill come into force on such a day as the Secretary of State may by regulations appoint. Commencement regulations under this amendment are to be subject to a negative resolution. The commencement of each section of the Bill has been carefully considered with regard to the specific issue and relevant circumstances to determine whether that provision should come into force on the day the Act is passed, or a set period beginning with the day on which the Act is passed, or on such a day as the Secretary of State may by regulations appoint. This bespoke consideration should not be displaced by a blanket rule requiring commencement regulations, and I do not believe there is any reasonable basis for requiring all commencement regulations to be subject to the negative procedure rather than the generally standard procedure of commencement regulations not being subject to any procedure.
Amendment 364 would require the Secretary of State to publish analysis regarding the impact of each section of the Bill on the speed of the planning process before we can commence any of its provisions. I appreciate the noble Baroness’ intentions behind this amendment, and we are aligned in that we want the Bill to have as big an impact as possible in unlocking growth and accelerating development across the country. However, we have already published a full impact assessment on the Bill, including analysis of how each measure will impact on the planning system. As I mentioned earlier, this analysis showed that the economy could be boosted by up to £7.5 billion over the next decade by this pro-growth legislation, and we should not look to delay the implementation of these clauses and the reaping of the Bill’s benefits across the planning system.
We are confident that the Bill will streamline and turbocharge planning processes. For example, our analysis of the Bill’s reforms to the pre-application stage of the NSIP regime shows that these changes could reduce the typical time projects spend in pre-application by up to 12 months. This is a dramatic acceleration of the current system and of delivery of major economic infrastructure and demonstrates clearly how the Bill will get Britain building again. With these reassurances, I hope the noble Baroness will not press her amendment.
Baroness Neville-Rolfe (Con)
My Lords, I thank those who have spoken from the Front Benches, and I thank the Minister for some of her reassurance. I will look carefully at Hansard. I do not think we are quite there on Natural England. There is the choice of the existing system, which has its problems, or the new system, which also has potential problems, so if we can make sure that SMEs have an easier time, that would be a great plus in the passage of the Bill.
In terms of commencement, obviously my amendments were exploratory, and I will not press them, but I look forward to better information on the NPSs, including the scheduling of when they will come forward as part of dissemination on the Bill. People need to understand the whole picture, as the Minister has acknowledged on a number of occasions. I beg leave to withdraw my amendment.